



Glass. 
Book. 



r2, 

si. 






FEDERAL POWER : 
ITS GROWTH AND NECESSITY 

HENRY LITCHFIELD WEST 



FEDERAL POWER: 

ITS GROWTH and NECESSITY 



BY 

HENRY LITCHFIELD WEST 

FORMER COMMISSIONER OF THE DISTRICT OF COLUMBIA 




NEW ^%SJ^ YORK 
GEORGE H. DORAN COMPANY 



^^3 

I' . .. 

(J 



II 



COPYRIGHT. 1918, 
BY GEORGE H. DORAN COMPANY 






PRINTED IN THE UNITED STATES OF AMERICA 



TO 

MARY HOPE WEST ^ 



Preface 

An epoch in our national history occurred on 
April 6, 19 1 7, when the people of the United 
States, through their representatives in Congress, 
declared the existence of a state of war with 
Germany. Since that eventful date we have wit- / 
nessed a most remarkable and unprecedented ex- 
ercise of Federal power. We have, withput pro- 
test and even with satisfaction, accorded to the 
government a control over corporate and indi- 
vidual existence which infinitely transcends the 
wildest dreams of those who advocate centralized 
authority. 

This being the case, it is worth while to re- 
view, briefly and concisely, the history of the 
growth of Federal power. There is a prevalent 
idea that the acceptance of Federal control is a 
matter of recent development. Nothing could be 
further from the truth. The belief in the neces- 
sity of nationalization had its beginning nearly 
three centuries ago and its persistent progress can 
be clearly traced through all the succeeding years. 



vu 



viii PREFACE 

Its course is as well-defined as that of the trick- 
ling mountain stream which deepens and widens 
until it is a resistless force sweeping onward to 
the sea. In other words, the Federal power now 
witnessed in unparalleled extent is the evolution 
of a principle to which we have grown accustomed 
and which we now recognize as essential to our 
national welfare. If we seem to be advancing 
with rapid and overwhelming strides, it is because 
the momentum has been gathering for many years. 
Long before the war with Germany was declared, 
the doctrine of States' rights had vanished and 
the doctrine of paramount necessity had taken its 
place. 

Because of the vital truth underlying this doc- 
trine, the growth of Federal power will be un- 
checked. Its continued manifestation upon a con- 
stantly enlarging scale is as inevitable as fate. It 
is easier, however, to review and analyze the past 
than to predict the future. We know that the 
character of our government, as designed by its 
founders, is already rapidly changing and that we 
are less prone than heretofore to regard our Con- 
stitution as a sacred and inviolable instrument. 
There is a possibility, with the integrity of the 
State as an essential unit disappearing, that we 



PREFACE ix 

may be brought face to face with a one-man, 
bureaucratic autocracy. There is still further 
danger of drifting into Socialism, which cannot 
develop in a republic composed of independent 
sovereignties, but which will thrive exceedingly 
under the aegis of a strong centralized govern- 
ment. The power to determine the destiny of the 
nation rests with the people. It is for them to 
solve the problem of reconciling a democratic sys- 
tem of government with the exercise of Federal 
power. The fact that they have in the past proven 
their capacity for self-government is the ba*is for 
the hope that they will wisely and safely cope with 
the grave situation which already confronts them. 

H. L. W. 



Contents 

CHAPTER - FACE 

I. The Beginnings of Federalism 15 

IL The First Triumph of FederaHsm. ... 30 

III. The FederaHstic Influence of John 

Marshall 44 

IV. The Civil War and its Consequences . . 57 

V. The Doctrine of Paramount Necessirv" 68 

VI. Federal Control Over Railroads and 

Trusts 82 

VII. The Federal Power and the People 97 

VIII. Broadening the Federal Field 114 

IX. The Supreme Court as the Bulwark of 

Federalism 134 

X. The Power of the President 150 

XL Federal Power as a Political Issue. . . . 166 

XII. Federal Power in War 183 

XIII. Federalism and the Future 197 



Zl 



FEDERAL POWER: ITS GROWTH 
AND NECESSITY 



FEDERAL POWER: ITS GROWTH 
AND NECESSITY 

Chapter I 

THE BEGINNINGS OF FEDERALISM 

MANY were the causes which led our fore- 
fathers to sail westward toward the 
American shores. Some came with the love of 
adventure, others in the hope of securing wealth. 
The largest proportion was dominated, unques- 
tionably, by the desire to escape the petty annoy- 
ances of trammeled! existence under tyrannical 
rule. They sought freedom and liberty of ac- 
tion. The conditions under which they lived, 
while not altogether unbearable, restricted pri- 
vate endeavor. The yoke of surveillance galled 
their necks, and for the privilege of governing 
themselves they willingly endured privation in a 
wilderness. To-day the American people accept 
without protest under a centralized government 

15 



16 FEDERAL POWER: ITS GROWTH 

a regulation of their private conduct which makes 
the conditions which induced the first immigra- 
tion to this country seem trivial by comparison. 
Small and isolated communities may be gov- 
erned with the least possible effort because they 
present a minimum of problems. Thus during 
the second half of the seventeenth century, when 
Massachusetts Bay was far removed in point of 
time from Jamestown, each American settlement 
governed itself, or was governed, with little diffi- 
culty. Maryland, Virginia, North Carolina and 
even Pennsylvania accepted a governor appointed 
by the English king, while in rugged New Eng- 
land a democratic form of government had been 
instituted. Peacefully and separately each colony 
might have pursued its way had not the Increase 
of population and the dangers from without com- 
pelled union. In this junction of interests, made 
necessary by the very force of circumstances, we 
find the beginnings of Federalism. The people 
realized fully 250 years ago that there was a 
strength In the mass which the unit did not pos- 
sess. To-day they invest the Federal government 
with extraordinary powers because they know that 
it Is a far more effective agency In the accomplish- 
ment of results than any Individual State can pos- 



AND NECESSITY 17 

sibly be. This realization has not been suddenly- 
acquired. It comes as the culmination of nearly 
three centuries of experience. Perhaps just now it 
is expressed more emphatically than ever before 
in our history but the seed was planted long ago. 
And because ideas which persist through long pe- 
riods take firm possession of the human mind and 
are then difficult to eradicate, the Federalistic sen- 
timent so prevalent to-day warrants the most seri- 
ous consideration. 

Three problems confronted the early colonists. 
The first and most important was the necessity 
of mutual protection against their common ene- 
mies, the Indians, Dutch and French. The sec- 
ond was the relation which the citizens of one 
colony should bear to the other. The third was 
the disposition to be made of fugitives from jus- 
tice who fled beyond the border line of the terri- 
tory in which their offense was committed. It 
was these factors which led to the confederation 
of the New England colonists in 1643. There 
was no hint, however, of any real union In this 
agreement of mutual help. On the contrary, the 
terms of the articles of confederation expressly 
reserved to each colony Its own local rights and 
jurisdiction. They did agree, It is true, not to 



18 FEDERAL POWER: ITS GROWTH 

make war without permission of their co-partners 
unless suddenly mvaded and also that no two col- 
onies should join In one jurisdiction without the 
consent of the others, but beyond this each colony 
was a law unto Itself. The very fact that they 
came together, however, with a definite Idea 
underlying their joint action, Is Important. It Is 
the fact Itself, rather than the manner or the 
method, which Is significant. 

This union In 1643 between Massachusetts, 
New Plymouth, Connecticut and New Haven was 
described as a league of friendship, the identical 
phrase used by the thirteen colonies in 178 1 
when they adopted the Articles of Confederation 
which were the precursor of the Constitution. 
The details of the union were very simple. Each 
colony was to name two Commissioners, and if 
six of the eight agreed upon any question, their 
decision was to stand; otherwise, it was to be 
referred back to the colonial assemblies. In which 
case the agreement of all four was to be required. 
Provision was made In the agreement for the re- 
turn of runaway slaves and fugitives from justice, 
but the vital principle Incorporated was the recog- 
nition of intercltizenship, the Inhabitants of each 
colony being accorded equal rights In the other col- 



AND NECESSITY 19 

onies. It seems very absurd nowadays to read of 
a solemn compact which assured an equality of 
citizenship, but at that time it was an absolute ne- 
cessity. In the early history of the Pennsylvania 
colony the people were highly indignant because a 
Delaware sheriff crossed their border in pursuit of 
a thief and the feeling between Massachusetts and 
Rhode Island was so bitter that it was dangerous 
for the citizen of one colony to be found within 
the confines of the other. 

Although this particular agreement became ob- 
solete within forty-five years and accomplished 
little or nothing, the germ of Federalism had 
been planted. As the years advanced, the people 
of the colonies became more and more impressed 
with the desirability as well as the necessity of 
cooperation and consolidation. In 1690 the New 
England colonies, together with New York, Vir- 
ginia, and Maryland, made an effort to combine 
and, although the attempt was not successful, it 
gave evidence of the existence of a sentiment for 
union. The capture of the French fortress Louis- 
burg, on the coast of Cape Breton, by a New 
England force under General Pepperell in I745» 
was signahzed by the '^hoisting of a Union flag." 
William Penn, shrewd and farsighted, should, 



20 FEDERAL POWER: ITS GROWTH 

perhaps, be designated as the father of Federal- 
ism, because his plan of combination as drawn up 
in 1696 was a very distinct advance in the way of 
definite suggestion. It was unique in that, for 
the first time, all the colonies were included, and 
because it provided that the assembly of the dele- 
gates should be called *'the Congress,'^ to be pre- 
sided over by a Commissioner appointed by the 
King. More than this, however, was the pro- 
vision for the regulation of commerce between 
the colonies. This was the crux then, as it is now, 
of the Federalistic movement. It had been easy 
to give citizens equal consideration everywhere 
and to combine in self-protection against a com- 
mon enemy, but experience was to prove that 
agreements which failed to take into considera- 
tion the very practical and material regulation of 
commerce by a central organization would be 
neither effective nor lasting. Penn's plan, although 
widely discussed, was not ardopted, but its vital 
principle of union, instead of dying out, became 
more and more alive. Robert Livingstone in 
1 70 1 suggested combining the colonies into three 
distinct governments, while twenty years later 
the Earl of Stair proposed a union of all the 
American colonies and the West Indies, with local 



AND NECESSITY 21 

self-government guaranteed to each. Many other 
thinkers came forward with similar schemes of 
consolidation, all of them expressing more and 
more the spirit of ultimate concentration of a Fed- 
eralistic power. Finally, in 1754, in the Albany 
Congress, Benjamxin Franklin evolved a plan 
which was a tremendous stride forward. It went 
too far, as a matter of fact, and was rejected; but 
its details are worthy of consideration as showing, 
even at that remote day, a realization of the even- 
tual necessity of a centralized government. 

Franklin proposed a grand council of the col- 
onies with members proportioned roughly^:o popu- 
lation, presided over by a President-General, who 
was to be invested with power to execute the acts 
of the council. This idea of an authoritative head 
over all the colonies was not as startling, however, 
as the provision that the grand council should 
"lay and le\y general duties, imposts and taxes" 
proportionately upon each colony. The thought 
embodied in this proposition was revolutionary. 
It confronted the colonies with a power superior 
to themselves. They were to govern themselves 
independently, of course, but they were also to 
be subject to paying assessments — nobody knew 
how much or how little — which might be laid upon 



22 FEDERAL POWER: ITS GROWTH 

them. The assembly to which this plan was sub- 
mitted, although it unanimously agreed that union 
was absolutely necessary for preservation, would 
not agree to being taxed by a central body, even 
though in that body the colonies were fully rep- 
resented. But the inevitable was merely post- 
poned. Less than half a century later they were 
to agree to a Constitution into which, through the 
agency of taxation and the regulation of com- 
merce, the supremacy of Federal power was to be 
breathed and the nation made a living soul. 

The first necessity for cohesion had been pro- 
tection against the Indians. In the last quarter of 
the eighteenth century another danger threatened. 
The English government, with fatuous persist- 
ency, had not only laid undue burdens upon the 
colonies but had done so in a manner calculated 
to arouse bitter resentment. The Stamp Act, 
which made the colonists contribute to the reve- 
nues of the British crown although without repre- 
sentation in the British Parliament, was especially 
odious. The closing of the port of Boston and 
other restrictions upon navigation bore heavily 
upon the population, while the fact that citizens 
of the colonies had been denied trial by jury and 
had even been transported to England for trial 



AND NECESSITY 23 

was repugnant to every sense of justice and fair 
play. It became essential, if these impositions 
were to be removed and the colonies left in the 
enjoyment of their peace and liberty, that there 
should be concerted action. In other words, the 
day of individual existence was passed and the 
colonies were to be transformed, as some one 
expressed it, into a bundle of sticks which could 
neither be bent nor broken. The bundle was, 
however, rather insecurely bound. The twine — 
for the material did not reach the stoutness nor 
dignity of rope — was the Continental Congress, 
a body of delegates with no authority behiiM them 
except public sentiment and who conducted a war 
against Great Britain in a hap-hazard arrange- 
ment with the colonies. It was while this war 
was in progress that the Articles of Confedera- 
tion were adopted. They declared that the States 
severally entered into "a firm league of friendship 
with each other for their common defense, the 
security of their liberties, and their mutual and 
general welfare, binding themselves to assist each 
other against all force offered to, or attacks made 
upon, them, or any of them, on account of re- 
ligion, sovereignty, trade, or any other pretense 
whatever.*' The States were not allowed to send 



24 FEDERAL POWER: ITS GROWTH 

or receive foreign embassies nor to make treaties 
with each other, but they could maintain war ves- 
sels *'in such number as might be deemed neces- 
sary by the United States in Congress assembled, 
for defense of such State or its trade," while the 
land force could be large enough to garrison all 
the forts within the State. These Articles of Con- 
federation are not so important for what they con- 
tain, however, as for what they omit. The former 
colonies, still tenacious of their individual rights, 
even though willing to be associated together un- 
der the title of "The United States of America," 
would not yield to Congress the right to make them 
pay taxes. Such powers as the Continental Con- 
gress possessed without written authority were not 
much increased by the document creating "the 
league of friendship." The Congress could 
modestly suggest what sum might be needed to 
maintain the central government but it had neither 
power nor machinery to enforce payment. The 
respect, not to say reverence, shown to the State 
as an entity was very marked. Congress itself 
declared that it could not negotiate a treaty of 
commerce which interfered with the legislative 
power of the State "in imposing such imposts and 
duties on foreigners as their own people are sub- 



AND NECESSITY 25 

jected to." The prerogatives of the State were 
still further jealously guarded by a provision which 
gave one vote to each State and compelled the 
assent of nine out of the thirteen States to prac- 
tically every measure which might be imposed. 

Weak and disorderly, inefficient and unsatisfac- 
tory, was the government under the Articles of 
Confederation, and simply because the people in 
the new States could not appreciate fully the neces- 
sity of surrendering sovereignty and putting force 
behind laws. It seems ridiculous to-day that New 
York should have possessed the authority to pass 
laws — and actually did enact laws — to keep out 
firewood from Connecticut and garden truck from 
New Jersey. No wonder that the bundle of sticks 
began to fall apart. Separation seemed imminent. 
Congress, declining daily in public esteem because 
of its confessed impotence, was too weak to ex- 
ercise any authority, and was equally helpless in 
the matter of raising revenues to meet current ex- 
penses. Then came the trouble with Spain over 
the navigation of the lower Mississippi River, 
which interfered with the effort to secure a com- 
mercial treaty with that country, and for the set- 
tlement of which no authority seemed to exist 
anywhere. Meanwhile, the rag money Issued by 



£6 FEDERAL POWER: ITS GROWTH 

the States was practically worthless and the lack 
of a secure currency occasioned great distress. 
Different States enacted different tariff and ton- 
nage acts; State jealousies were easily aroused and 
frequently expressed. Massachusetts, for in- 
stance, although disturbed by serious internal 
troubles, declared that it was beneath its dignity 
to allow Congressional troops to set foot upon its 
soil. There was no such thing as national credit, 
while national authority was absolutely non- 
existent. 

Under these circumstances, it was more and 
more borne in upon the American people that 
their system of self-government was vitally wrong. 
The very conditions under which they lived con- 
vinced them that they had not solved the problem. 
Fortunately there were men like George Wash- 
ington to courageously point out the defect and 
suggest the remedy. These men appealed to what 
might be called the Federal spirit in the people — 
the spirit which, manifested in various forms dur- 
ing the preceding century and a half, was now to 
be stimulated into accomplishment. Washington 
insisted that there should be a central govern- 
ment which, in addition to possessing the power 
to make war and peace and conclude treaties, 



AND NECESSITY Tl 

should also have authority to levy taxes and regu- 
late commerce, and should completely control the 
executive and judicial departments. He felt, as 
he expressed it later, that It was impracticable 
to secure all the rights of independent sovereignty 
to each State and yet provide for the Interest and 
safety of all. Pelatiah Webster, stating the idea 
more definitely, proposed ''a new system of gov- 
ernment which should act not on the States but 
directly upon individuals and vest in Congress full 
power to carry its laws into eifect." The fullness 
of time had come; but even so, It was necessary 
for the men who foresaw that only in united and 
not divided power could the union survive, to 
move with caution. The famous convention of 
1787, which framed the Constitution, was the out- 
growth of a conference called to consider the re- 
lations between Maryland and Virginia growing 
out of the extension of navigation in the upper 
Potomac. Merely as a secondary consideration 
for the gathering at Annapolis was it suggested 
that the delegates should take up the task of 
amending the Articles of Confederation. The 
path to Federalism, while proving less arduous, 
was not unopposed. There were still some people 
who argued that the principle Involved in the pro- 



g8 FEDERAL POWER: ITS GROWTH 

test against the Stamp Act, viz., that no authority 
to levy taxes existed outside of the State itself, 
was now proposed to be violated by the creation 
of a central government which would exercise this 
power. They asked why they had fought the 
war of the Revolution if the independence which 
they had gained was thus to be ruthlessly sacri- 
ficed. This discontent found expression in the in- 
surrection in Western Massachusetts in 1786-87, 
known as Shays's rebellion. Happily, however, 
these voices were in the minority. The great mass 
of people, as John Fiske so plainly shows, were 
more afraid of anarchy than of centralization; 
and anarchy was staring them in the face. 

It seems strange nowadays, when we are so 
thoroughly accustomed to appeals for the larger 
exercise of Federal power, to read how the peo- 
ple of little over a century ago stood with anxious 
faces under the shadow of an impending Federal 
government. They accepted it with trepidation 
because it seemed to be their only salvation, and 
because there had been visible demonstration of 
its efficiency during the preceding one hundred 
and fifty years. They had learned by experience 
the value of united action against enemies from 
without, the Indians and the English. They had 



AND NECESSITY 29 

an Idea that what had proven efficacious yesterday 
might be equally so to-day. What they did not 
foresee was that a century later the people would 
unite to make the strong arm of the government 
still stronger so as to fight enemies from within / 
— corporate domination and the monopoly of 
trusts — as well as to insure the largest degree of 
benefit to each individual citizen of the United 
States. 



80 FEDERAL POWER: ITS GROWTH 



Chapter II 

THE FIRST TRIUMPH OF FEDERALISM 

THE fate of the union now hung in the bal- 
ance. If the States would agree to abandon 
their Idea of independent sovereignty in order that 
centralized government might be established there 
was hope for future solidity and progress. 

In selecting George Washington as the presi- 
dent of the Constitutional Convention the friends 
of Federalism gained a decided victory. It is 
true that as the presiding officer Washington 
could not participate in the debates, but he was a 
Federalist at heart and his influence was strong 
with delegates of wavering opinions. The theory 
of the sovereign character of the States was still 
uppermost in many minds and it was no easy 
matter for the Federalists to convince these doubt- 
ers that the Federal government must possess the 
power to levy taxes and regulate commerce. 
These were the crucial points at issue. Questions 
as to how the representatives of the people were 



AND NECESSITY 31 

to be chosen; how the President should be elected 
and the length of his term ; and whether the Fed- 
eral judiciary should be elected or appointed, 
were mere details. The future of the govern- 
ment was settled when a dozen words had been 
written into the Constitution — "general welfare," 
"lay and collect taxes," and "regulate commerce 
among the several States." When, in addition, 
It was declared that all laws of the United States 
made in pursuance of the Constitution "shall be 
the supreme law of the land, and the judges in 
every State shall be bound thereby, anyljiing in 
the constitution or laws of any States to the con- 
trary not^^ithstanding," the growth of Federalism 
was as inevitable as fate. The seed was planted 
and the day of full fruition was merely a question 
of time. The tenth amendment to the Constitu- 
tion, which prescribes that "the powers not dele- 
gated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved 
to the States respectively, or to the people," was 
merely a sop to Cerberus. It eased the minds of 
the opponents of a centralized government and to 
that extent accomplished the purpose for which 
it was intended. 

The victory for Federalism in the Constitution 



32 FEDERAL POWER: ITS GROWTH 

came as the outcome of a skillfully managed con- 
test. The States, unaware of the tremendous is- 
sues to come before the convention, sent their 
delegates with perfunctory credentials. New 
Hampshire stood practically alone in its declara- 
tion that it would not circumscribe its views *'to 
the narrow and selfish objects of the partial con- 
venience," and in its avowal of readiness to make 
every concession for the safety and happiness of 
the whole. When Edmund Randolph, delegate 
from Virginia, introduced a series of resolutions 
as a basis for action, he carefully avoided all 
reference to the levying of taxes or the regulation 
of commerce, although he was willing that Con- 
gress should "legislate in all cases to which the 
separate States are Incompetent or in which the 
harmony of the United States may be Interrupted 
by the exercise of individual legislation." Charles 
Pinckney, of South Carolina, went further and 
boldly proposed that Congress "shall have the 
power to lay and collect taxes, duties, imposts and 
excises." While this vital principle was being 
gradually Impressed upon the minds of the dele- 
gates the debate proceeded. The tender sensibili- 
ties of those who still manifested some regard for 
the rights of the States were rudely shocked by 



AND NECESSITY 33 

the unqualified expressions of Alexander Hamil- 
ton. *'I am convinced,'^ he said, "that no amend- 
ment of the Confederation can answer the pur- 
pose of a good government so long as the State 
sovereignties in any way exist." He declared fur- 
ther that State distinctions and State operations 
must be annihilated, '*and unless we do this," he 
added, "no good purpose can be secured." One 
of his reasons for electing Representatives by the 
people was a belief that there might come a time 
when State legislatures would cease and he 
thought that "such an event ought not tc^ embar- 
rass the national government." It must not be 
understood, however, that these radical views 
were uttered without arousing protest. On the 
contrary, Robert Yates and John Lansing, jr., 
delegates from New York, withdrew from the 
convention when they tound the Federal spirit so 
strongly expressed and saw it being embodied in 
the Constitution. They hastened home to pour 
out their grievances into the sympathetic ear of 
Governor Clinton and then gave publicity to their 
fears. They asserted that the principles incor- 
porated into the Constitution were destructive to 
civil liberty, argued that the United States could 
never govern the wide expanse of territory in- 



34 FEDERAL POWER: ITS GROWTH 

eluded within its borders, spoke timorously of 
the great cost which the national legislature would 
entail upon the people, and strenuously objected 
to New York being deprived of its most essential 
rights of sovereignty and placed in a dependent 
position. 

Unnecessarily alarmed were Yates and Lansing, 
as the future demonstrated, and yet they were 
not alone in their position. The Constitution was 
finally adopted by the convention because the 
country was then face to face, as it is to-day, with 
problems not to be solved except through the ex- 
ercise of strong Federal power; but out of the 
sixty-five delegates designated, only thirty-nine 
remained in their seats to affix their signatures to 
the immortal document. In Virginia, Patrick 
Henry denounced the Constitution as a fla- 
grant outrage upon the States and he especially 
criticized the opening phrase, "We, the people 
of the United States." He saw in these words 
the beginning of the end. Many Virginians 
shared his views — Richard Henry Lee and George 
Mason among the number. The final ratification 
by Virginia was accomplished by the narrow mar- 
gin of ten votes out of a total of 165, and only 
because the members of the State convention had 



AND NECESSITY 35 

the wisdom to see that no matter how the States 
had been treated, the powers granted by the Con- 
stitution still remained with the people and had 
not in any way been abridged. As a mc/'-er of 
fact, time has demonstrated the accuracy of this 
point of view. The wide extent of power now 
enjoyed by the Federal government has been 
given to it by the people. The government has 
become, as some one has aptly expressed it, a 
creature of the masses which compose the sov- 
ereignties rather than of the sovereignties them- 
selves. ^ 

But it was impossible in those days, with a few 
weak States just emerging from a long and costly 
war, to secure the acquiescence in Federal su- 
premacy which is now accepted as a matter of 
course. "Sic transit gloria Americana," wrote 
Elbridge Gerry, while Samuel Chase, James Mon- 
roe, and scores of other leading men joined 
in the general chorus of criticism. At Albany 
a copy of the Constitution was publicly burned 
and in Rhode Island nearly i,ooo armed men, 
headed by a judge of the State Supreme Court, 
compelled the speakers at a public gathering to 
desist from saying anything favorable to the 
Constitution. To meet this hostile sentiment 



36 FEDERAL POWER: ITS GROWTH 

Hamilton, Madison and Jay — ^but mainly Hamil- 
ton — wrote the Federalist papers. These cogent 
and logical expositions of the necessity for a Fed- 
eral government are so familiar that only two 
observations are requisite to the purposes of this 
volume. The first is that they have endured. 
There were innumerable pamphlets in opposition 
to the scheme outlined in the Constitution but they 
have perished, save for a few rare copies now pre- 
served in various libraries. The Federalist pa- 
pers, on the other hand, have been published in 
many editions and still remain standard literature, 
a convincing illustration of the trend of the public 
mind. In the second place, it Is worth while to 
note how Hamilton's predictions have been com- 
pletely disproved by the experience of history. 
"It will always be more easy," he wrote, **for 
the State governments to encroach upon the na- 
tional authority than for the National government 
to encroach upon the State authorities.'* This 
idea was several times repeated. *'It should not 
be forgotten," he wrote again, **that a disposi- 
tion in the State governments to encroach upon the 
rights of the Union is quite as probable as a dis- 
position in the Union to encroach upon the rights 
of the State governments." A contest between 



AND NECESSITY 3T 

the two, he declared, "will be most apt to end to 
the disadvantage of the Union." It is difficult 
to reconcile these statements with Hamilton's ad- 
mittedly keen political foresight. If he did not 
realize that the strong central government for 
which he argued, a government with authority to 
levy taxes and regulate commerce among the 
States, would be more powerful than any one 
State, his political acumen has been over-rated; 
while if he did appreciate it, he deliberately mis- 
led the people in his overwhelming desire to secure 
the ratification of the Constitution. In either case, 
history has fully demonstrated the falsity of his 
position. 

Despite much misgiving on the part of the fev/, 
the great mass of the people pushed ahead under 
the new Federal government, halting for a mo- 
ment when they elected Jefferson to succeed 
Adams, but finding that Jefferson could forget his 
strict constructionist Ideas and become an expan- 
sive nationalist when the opportunity to purchase 
Louisiana presented Itself. Steadily the spirit of 
Federalism grew. There were, of course, many 
problems, and some outward expressions of dis- 
content over the exercise of Federal power at 
the expense of the rights of the States. The 



38 FEDERAL POWER: ITS GROWTH 

conflicts were frequent and Intense. In 1793, 
four years after the government was established, 
the Supreme Court of the United States, in the 
famous case of Chisholm vs. Georgia, decided 
that a citizen of one State could sue another State 
in the Federal courts. This decision laid all the 
States liable to suits to compel payment of debt 
obligations and caused much dissatisfaction and 
even alarm. The Georgia House of Representa- 
tives angrily declared that such assumption of 
Federal authority would ^'effectually destroy the 
retained sovereignty of the State,'' would render 
the States nothing but tributary corporations of 
the United States Government, and added that 
the State would not be bound by the judgment 
of the Federal court. More than this, the State 
legislature passed a law providing that any person 
attempting to carry out the decree of the Federal 
court by seizing property within the State should 
be hung without benefit of clergy. Other States, 
Including Massachusetts and New Hampshire, 
also protested, but without immediate result. 
Five years elapsed before the ratification of the 
eleventh amendment to the Constitution, which 
forbids the extension of the judicial power of the 
United States to any suit commenced or prose- 



AND NECESSITY 39 

cuted against one of the United States by citizens 
of another State. The remonstrances of one or 
two States against alleged degradation at the 
hands of the Federal government were certainly 
not provocative of swift redress on the part of the 
people. 

Still more illustrative of the growth of the Fed- 
eral sentiment even In those early days was the 
reception given to the protest of Virginia and 
Kentucky against the Alien and Sedition Laws. 
The Alien Law gave the President power to order 
out of the United States all aliens whom he judged 
dangerous to the peace and safety of the country, 
or who he suspected were concerned in any trea- 
sonable or secret machinations against the gov- 
ernment: while the Sedition Law made it an of- 
fense punishable by fine and imprisonment to 
"write, print, utter, or publish, any false, scanda- 
lous, or malicious writings against the government, 
either house of Congress, or the President." Im- 
mediately the legislatures of Virginia and Ken- 
tucky passed resolutions clearly defining their 
opinion as to the relation of a State toward the 
Federal government. The original draft of the 
Kentucky declaration, written by Jefferson, was an 
admirable document, so far as Its presentation of 



40 FEDERAL POWER: ITS GROWTH 

the rights of a State was concerned. . "This com- 
monwealth is determined," the resolutions assert- 
ed, ''as it doubts not its co-States are, to submit to 
undelegated and consequently unlimited powers in 
no man, or body of men, on earth." There was 
also in the protest a distinct assertion of the right 
of nullification — a theory later to be critically pre- 
cipitated by South Carolina. It was, in effect, a 
contention that the citizen owed his first allegiance 
to his State, a principle which also later found its 
exemplification at the outbreak of the Civil War. 
The Virginia resolutions were prepared by Madi- 
son and were naturally less belligerent in tone, but 
even they called upon all the States to co-operate 
with Virginia In necessary and proper measures 
for "maintaining unimpaired the authorities, 
rights and liberties reserved to the States respec- 
tively, or to the people." The value of the re- 
cital of this incident Is not in the fact that the 
resolutions were passed, for that was quite under- 
standable, but in the attitude of the other States. 
This shows how thoroughly the people had al- 
ready become inoculated with Federalism. Al- 
though the resolutions were transmitted to all the 
States, there was no very general affirmative re- 
sponse. On the contrary, Delaware regarded 



AND NECESSITY 41 

them as '*a very unjustifiable interference with the 
general government and the constituted authorities 
of the United States," while Massachusetts went 
still further and denied the authority of any State 
to call into question the constitutionality of a Fed- 
eral law. Pennsylvania, in the same spirit, de- 
clared that such resolutions were calculated to 
destroy the very existence of the government, 
while New York, Connecticut, New Hampshire 
and Vermont all expressed dissent from Virginia's 
position. 

Although the objectionable laws were eventu^ally 
repealed, the people were thus beginning to 
acknowledge the commanding position of the Fed- 
eral government and were inclining to the belief 
that what the government did was right. The 
new idea was not, however, universal. The coun- 
try was still divided into two factions — one up- 
holding the sovereign character of the States and 
the other insisting upon larger powers for the 
Federal government. The election of Thomas 
Jefferson to the presidency was a momentary vic- 
tory for the former. The defeat of the Federal 
party occurred in November, 1800. Jefferson 
could not be inaugurated until March 4, 1801. 
During the four months that intervened the Fed- 



42 FEDERAL POWER: ITS GROWTH 

eralists executed the most remarkable coup d'etat 
in American history. They had lost the executive 
and legislative branches of the government. 
They determined, however, to hold the judicial. 
Here again we find Hamilton's judgment to be ut- 
terly at variance with facts. In his Federalist 
papers, discussing the judiciary, he had minimized 
this branch of the government. According to his 
view, the judiciary would never be a serious fac- 
tor. He asserted that the judiciary, from the 
very nature of its functions, would be the least 
dangerous to the political rights of the Constitu- 
tion. *'The executive," he said, ^'not only dis- 
penses the honors but holds the sword of the com- 
munity. The legislature not only commands the 
purse, but prescribes the rules by which the duties 
and the rights of every citizen are to be regulated. 
The judiciary, on the contrary, has no Influence 
either over the sword or the purse; no direction 
either of the strength or the wealth of the society; 
and can take no active resolution whatever. It 
may truly be said to have neither force nor will, 
but merely judgment.'* For these reasons he con- 
cluded that ''the judiciary is beyond comparison 
the weakest of the three departments of power." 
But now the Federalist party was to demon- 



AND NECESSITY 4S 

strate that instead of being the weakest, the 
judiciary was the strongest of the three depart- 
ments of power, for it enacted, on the eve of its 
ejection from control, a law adding six new circuit 
and twenty-two district judges to the Federal ju- 
diciary. More than this, President Adams, within 
twenty days of the expiration of his term, took 
John Marshall out of his cabinet, in which he 
was Secretary of State, and appointed him Chief 
Justice of the Suprem^e Court of the United States. 
The importance of this action upon the develop- 
ment of the Federalistic spirit in the United States 
cannot be overestimated. In the appointment of 
Marshall the doom of the doctrine of the sover- 
eignty of the States was sealed. Still further, the 
time was to come, in the evolution of Federalism., 
when the Supreme Court would direct the strength 
and especially the wealth of society by decisions 
affecting the organization of gigantic corporations, 
involving the regulation and distribution of 
swollen fortunes. 



44 FEDERAL POWER: ITS GROWTH 






Chapter III 

THE FEDERALISTIC INFLUENCE OF 
JOHN MARSHALL 

THE period between 1801 and 1835 marked 
another epoch In the growth of the Fed- 
eralistic spirit in the United States. During these 
thirty-four years John Marshall, of Virginia, was 
Chief Justice of the Supreme Court of the United 
States. It was the formative period of the na- 
tion. The Constitution had been adopted, it Is 
true, but the great Federal principle which under- 
lay Its adroit phrasing was but dimly realized. 
Men viewed its provisions according to their own 
convictions. There had been no definite expres- 
sion and upon the character of this expression 
depended the future of the republic. 

Marshall spoke the words which emphasized 
nationality. It is useless now to speculate upon 
what might have been our destiny If a man of the 
Jeffersonian manner of thinking had been placed 
in the position which Marshall occupied. It Is 



AND NECESSITY 45 

possible the whole trend of our history might have 
been changed and that instead of a centralized 
government, steadily increasing in strength, we 
should have had a league of independent but weak 
States, lacking the binding force of nationality. 
So great was the influence which Marshall 
exerted, so lasting was the effect of his de- 
cisions, that some reference to his personality is 
not inappropriate, even though the story of his 
life may not be unfamiliar. In following the 
growth of Federal power in the United States his 
figure occupies such a commanding position that 
it can neither be overlooked nor minimized. He 
had been rightfully characterized as a nation- 
builder. In the face of a hostile executive and a 
hostile Congress he upheld the banner of national- 
ism and not only his courage and force but the 
far-reaching effect of his views transformed the 
judiciary from a coordinate into a dominating 
factor in our system of government. To-day we 
are beginning to question whether the courts have 
the right to the last word upon questions affect- 
ing the interpretation of constitutional provisions 
— a subject inviting discussion were it not for the 
fact that it would lead too far afield. Suffice it 
to say that it will take some time to dislodge from 



46 FEDERAL POWER: ITS GROWTH 

the public mind the idea of judicial supremacy 
inculcated by Marshall and coming down to us 
through many years. 

Profound convictions are not uttered upon the 
spur of the moment but are the concrete expression 
of accumulated observation and associations. This 
was eminently true of Marshall's decisions. The 
judgments which he rendered as Chief Justice of 
the Supreme Court of the United States were as 
inevitable as the following of an eiiect upon its 
cause. He had no hesitation in ascribing his devo- 
tion to the idea of union, and to a government 
competent to its preservation, at least as much to 
current events as to theoretical reasoning. He was 
imbued, he said, with the maxim, "United we 
stand, divided we fall," and it became a part of his 
being. In the army, for he had served with great 
credit during the Revolution, he was confirmed in 
the habit of considering "America as my country 
and Congress as my government." The lesson of 
the war with Great Britain, when an almost impo- 
tent Congress had more than once jeopardized vic- 
tory, had not been lost upon his observing mind. 
He had seen how the jealousies of the States had 
intervened; how the lack of Federal power in 
the government had paralyzed its efforts ; and he 



AND NECESSITY 4*7 

felt that the republic could not survive unless all 
this was changed. In so far as he had been able 
he had upheld the hands of Washington and the 
Federalists. He had fought for the ratification of 
the Constitution in the Virginia legislature, defeat- 
ing Patrick Henry by the force of logic against 
eloquence; he had won a seat in Congress at 
the hands of a hostile electorate through mere 
strength of character and personal popularity; he 
had defended President Adams upon the floor of 
the House against a resolution of censure for 
surrendering to the British government a sailor 
accused of murder; he had steadfastly mamtained, 
in controversy with Jefferson, the Federal theory 
of government; and, finally, as Secretary of 
State under Adams, he had emphasized in his 
official correspondence the national character of 
the government which he represented. Above all, 
he was skilled in the law. He was, therefore, a 
person of no uncertain quality. He had been tried 
in the balance and not found wanting. President 
Adams was making no experiment when he select- 
ed John Marshall to be the expounder of the Fed- 
eral doctrine in the court of last resort. Whether 
he fully appreciated the future consequences of 
his act may, indeed, be a matter of doubt; but 



48 FEDERAL POWER: ITS GROWTH 

history can never acquit him of indulging in the 
hope that in some measure, at least, he had check- 
mated the temporary triumph of the men who 
believed more in a confederation of petty but in- 
dependent sovereignties than in the subordination 
of these jurisdictions to Federal power. 

It so happened that an opportunity was imme- 
diately afforded to Marshall to emphasize his 
views. William Marbury, a citizen of the Dis- 
trict of Columbia, sought to compel James Madi- 
son, Secretary of State, to deliver to him a com- 
mission of appointment as justice of the peace, 
signed by President Adams and to which the seal 
of the State Department had been affixed, but 
which had not been delivered before Mr. Adams 
vacated the presidential office. Chief Justice Mar- 
shall, although he did not issue the mandamus, 
decided that the Secretary of State ought to sur- 
render the commission and then took occasion to 
enunciate his ideas as to the nature of the govern- 
ment. He upheld the Constitution as supreme, 
not to be violated by any of the coordinate 
branches of the Government. He declared that 
the Supreme Court had the right to review the 
acts of the national legislature and of the execu- 
tive — a declaration accepted to-day without pro- 



AND NECESSITY 49 

test, but very revolutionary to the public mind in 
1803. Jefferson, for instance, uttered fierce de- 
nunciation, and one of Marshall's colleagues on 
the bench exclaimed that "the American people 
can no longer enjoy the blessings of a free gov- 
ernment whenever the State sovereignties shall 
be prostrated at the feet of the general govern- 
ment." Jefferson, foreseeing and fearing the 
power of the Federal judiciary, sought to em- 
barrass its operations by instigating at least two 
impeachments, one of which succeeded on account 
of the admitted incapacity of the judge, and the 
other ignominiously failed. ^ 

In the midst of the storm which he had created 
Marshall pursued his undaunted way. Decision 
followed decision, each one striking more and 
more at the so-called sovereignty of the States and 
extolling not only the necessity but the benefits of a 
strong Federal government. In the case of the 
United States against Peters, he declared that the 
legislature of a State could not annul the judgment 
of the courts of the United States and destroy the 
rights acquired under those judgments. In the 
case of Fletcher against Peck he decided that the 
constitutionality of a law passed by a State legisla- 
ture was a question within the jurisdiction of a 



50 FEDERAL POWER: ITS GROWTH 

Federal court. In McCuUoch vs, Maryland the 
decision was to the effect that a State had no right 
to lay a tax upon an institution chartered by Con- 
gress, the statement being made that if one Fed- 
eral institution could be taxed, so could the mail, 
the mint and the custom-house ; and with the added 
remark that the American people ^'did not desire 
their government to depend upon the States." The 
supremacy of a Congressional enactment to any 
State law was asserted in the case of Cohens vs. 
Virginia, which concerned a man arrested and 
fined under the State law for selling lottery tickets, 
although the lottery existed in Washington under 
the authority of a Federal statute. The State of 
Virginia was emphatically advised that the Su- 
preme Court of the United States had jurisdiction 
over cases arising under Federal laws. 

It is impossible, of course, even to mention, 
much less review in detail, the thirty-six decisions 
which Mr. Marshall wrote in connection with 
Federal questions, but there are two others to 
which reference must be made on account of their 
ultimate effect in determining the Federal char- 
acter of the government. The first was the Dart- 
mouth College case, in which the constitutional 
provision against the impairment of an obliga- 



AND NECESSITY 51 

tion of contract was held to apply to a charter 
granted to a corporation notwithstanding State 
legislation. This decision stands to-day as the / 
main element of stability in corporate enterprise. 
The other case was that of Gibbons vs. Ogden. 
The problem in this case would not be deemed 
to-day worthy of a moment's consideration and 
Is only cited as showing how jealous were the 
States of their independence in the early stages 
of our history. Two citizens of New York, Ful- 
ton and Livingstone, had been granted by the 
legislature of that State the exclusiv% right to 
navigate the waters of the State with steamboats 
and had sub-leased the privilege to Ogden. A 
citizen of New Jersey named Gibbons, operating 
under a coasting trade license issued by the Fed- 
eral government under a Federal law, had in- 
vaded the New York waters and had been ordered 
by the New York courts to desist. He thereupon 
appealed to the United States Supreme Court for 
protection in the use of a navigable river. It seems 
trivial enough nowadays, this controversy over 
New York's claim to exclusive jurisdiction, but it 
was no simple matter then. The contention of the 
State was swept aside with ruthless hand. More 
than this, the power of the United States to regu- 



52 FEDERAL POWER: ITS GROWTH 

late commerce among the States was set forth! 
with such lucidity and emphasis that the prin- 
ciples which Marshall enunciated remain prac- 
tically unchanged to the present day. The au- 
thority of the Federal government in dealing 
with commerce, while resting primarily upon the 
Constitution, was given a width of range in this 
decision, written nearly a century ago, which still 
stands unrestricted. "In war," said Marshall, 
"we are one people. In making peace we are one 
people. In all commercial relations we are one 
and the same people." This was the keynote of 
his views. The distinction which he drew be- 
tween the people and the States must be borne in 
mind to-day when it is the people who, through 
the Federal Congress, are gradually atrophying 
the legislatures of the States. 

Larger and larger were the powers and au- 
thorities which, in opinion succeeding opinion, 
Marshall gave not only to the Supreme Court but 
to the President and to Congress, all of them 
agents of the Federal government. There were 
strict and narrow constructionists of the Constitu- 
tion in those days — many more, in fact, than there 
are to-day — ^but Marshall brushed them aside 
with scant consideration. To his mind they were 



AND NECESSITY 5^ 

obstacles in the path of progress. He scorned 
their reasoning, under which, to use his own 
words, the Constitution would still be a magnifi- 
cent structure to look at, but totally unfit for use. 
Under the tremendous force of his logic, coupled 
with a stern realization of its truth, the Federal 
instinct developed. The American people began 
to accept largely, if not universally, the doctrine 
of "the subordination of the parts to the whole, 
rather than the complete independence of any 
one of them.'^ They were compelled to agree 
with him, even against their will, that^he gov- 
ernment would be "a mere shadow unless invested 
with large portions of that sovereignty which be- 
longs to independent States." Perhaps, after all, 
they were most impressed with the depth and sin- 
cerity of his convictions. Certainly sentences like 
these, used in beginning one of his decisions, must 
have made a profound impression upon the public 
mind : 

The Constitution of our country, in its most 
interesting and vital parts, is to be considered; 
the conflicting powers of the government of the 
Union and of its members, as marked in that 
Constitution, are to be discussed and an opinion 
given, which may essentially influence the great 
operations of the government. No tribunal can 



54 FEDERAL POWER: ITS GROWTH 

approach such a question without a deep sense 
of its importance, and of the awful responsibility 
involved in its decision. But It must be decided 
peacefully or remain a source of hostile legislation, 
perhaps of hostility of a still more serious nature; 
and if it is to be so decided, by this tribunal alone 
can the decision be made. On the Supreme Court 
of the United States has the Constitution of our 
country devolved this important duty. 

In this reverential and solemn spirit did Mar- 
shall approach and, with his colleagues, decide the 
momentous questions that determined the absolute 
unity and sohdity of these United States. When 
he wrote these words, he was not building igno- 
rantly, even though he may have been building 
wiser than he knew. He had the eye of a seer 
and foresaw plainly that if his views remained 
as the law of the land there could be but one 
outcome, the obliteration of State lines. The 
period which he pictured Is upon us. Surely the 
thirty-four years during which he sat upon the 
bench must be regarded as epochal. It stands 
out In history as a milestone from which to meas- 
ure further advance. 

Beginning his career upon the Supreme Bench 
with the executive and Congress and a majority 
of people anti-Federalist In their views, Marshall 



AND NECESSITY 55 

lived to see the river of Federalism grow wider 
and deeper. His first decision, in the case of 
Marbury vs. Madison, coming, as it did, like a 
thunderbolt out of a clear sky, had aroused In- 
dignant protest; his last decision, although no less 
uncompromising in its limitation on supposed 
rights of the States, was accepted as expressing 
what had become a settled principle. In the mean- 
time much had happened. The War of 1812, for 
instance, had done much to awaken national spirit 
and the Star-Spangled Banner, as the national em- 
blem, filled the public eye. There were f)roposi- 
tions in Congress relating to a new national cur- 
rency, a national university and the national im- 
provement of highways. The act re-chartering 
the Bank of the United States was passed in 18 16, 
the institution being destined later to figure promi- 
nently in a bitter dispute as to the abuse of its 
great power. In the same year a tariff law was 
passed and Congress also provided for national 
improvements. All these extensions of Federal 
authority were not accomplished, however, with- 
out much protest and criticism. This antagonism 
Is mentioned merely to emphasize the fact that 
it was futile and has been forgotten. Over all 
was spread the aegis of Marshall's decisions. 



56 FEDERAL POWER: ITS GROWTH 

These inspired the American people with the 
greatness of the government they had formed. 
Their principles have since found permanent 
lodgment in the American mind because they were 
founded upon everlasting verity. 



AND NECESSITY 57 



Chapter IV 

THE CIVIL WAR AND ITS CONSEQUENCES 

THE period between the death of Chief Jus- 
tice Marshall and the beginning of the 
Civil War was notable for a marked indisposition 
on the part of the American people squarely to 
meet the issue of a centralized governmenf. 

While the national spirit grew, there was still a 
prevalent idea that the States were worthy of con- 
sideration. Even though the national pride had 
been stimulated by the victories of Perry at Lake 
Erie and Jackson at New Orleans, there had been 
a gathering of New England men at Hartford to 
protest against the powers of Congress in matters 
pertaining to war and the laying of embargoes, 
while there was a strong objection to the refusal 
of the United States to pay for the expense of de- 
fending Massachusetts and Connecticut because 
those States would not place their militia under 
the control of the Federal government. Jefferson 
sought to check the tide of Federal power by 



58 FEDERAL POWER: ITS GROWTH 

frowning upon Congressional appropriations for 
local improvements and Madison vetoed a bill 
which carried money for the Cumberland road. 
Whenever the country was brought squarely up 
against the question as to which was supreme, the 
nation or the State, some way was found to avoid 
a direct answer. There was compromise in the 
admission of Missouri, the demand of the set- 
tlers of that territory that they be granted the 
right to hold slaves being accorded, but it being 
also agreed that the slave-holding area otherwise 
should not extend north of a line drawn west 
of Missouri on the parallel of 36° 30'. The 
rights of a territory, or even a State, under the 
Constitution, were still unsettled when Kansas 
and Nebraska sought admission, and when Con- 
gress threw the problem back to the people the 
struggle between the free-soilers and the would-be 
slave-holding element led to sanguinary encoun- 
ters. In the case of South Carolina the question 
of State rights was acutely presented. The South 
Carolina legislature declared that the Federal 
tariff should be regarded as null and void within 
the State borders. This aroused the anger of 
the irascible Jackson, who, although he had once 
advised Congress against all encroachments upon 



AND NECESSITY 59 

the legitimate sphere of State sovereignty, now 
threatened to personally hang upon the nearest 
tree any person who disobeyed the Federal law. 
"The Federal union," he dramatically exclaimed, 
"it must be preserved." Calhoun insisted that a 
State had the right to nullify, while Webster 
argued with wonderful eloquence and logic for 
national supremacy. Still, no one seemed to care 
to meet the issue face to face and again there was 
a compromise in which Congress agreed to respect 
the basis of South Carolina's protest and adjust 
the tariff upon lines which were not wholly objec- 
tionable to the South. 

It is not strange that in those days men were 
unwilling to go to the extreme of full accepta- 
tion of Federal domination. It is true that the 
country was developing tremendously, that new 
States were being added to the union, that the rail- 
roads and the telegraph were about to become 
powerful factors in the growth of commerce, and 
that it was evident that the United States was des- 
tined to become one of the great nations of the 
world. At the same time, the old Federalist party 
had practically disappeared; there was still the 
memory of the part which the States had played in 
the formation of the union; and there was no 



60 FEDERAL POWER: ITS GROWTH 

desire to make complete the partial surrender of 
State jurisdiction and State operation which had 
made the union possible. No man, however, can 
serve two masters. There could not be an equality 
between the State and the nation. The weaker 
must give way to the stronger. The part could 
not be greater than the whole. It was inevitable 
that the question had to be settled, even though 
the decision necessitated a fratricidal struggle. 
Even when the clouds were darkest the regard 
for the rights of the States was evident. The po- 
litical conventions of i860 carefully Ignored all 
reference to the troublous Issue, and even PresI- 
dent Lincoln, in his Inaugural address, while he 
emphasized the perpetuity of the union, was will- 
ing to agree that the status quo should be pre- 
served. Viewed through the perspective of time, 
the most remarkable thing about the generation 
between Marshall's judicial service and the Civil 
War was the reluctance with which the nation 
approached the conclusion that the Federal gov- 
ernment Is, and must necessarily be, supreme. 

Then came the war, and with It an exercise 
of Federal power far beyond the wildest flights 
of the Hamiltonlan Imagination. There was no 
longer thought of compromise or possibility of 



AND NECESSITY 61 

evasion. The issue had to be squarely met. There 
was some muttering as larger and larger powers 
were assumed by the heroic Lincoln and by Con- 
gress, while the restrictions of the Constitution 
were ignored. In his inaugural message Lincoln 
had suggested that "the power confided to me will 
be used to hold, occupy and possess the property 
and places belonging to the Government and col- 
lect the duties and imposts, but beyond what will 
be necessary for these objects there will be no 
invasion.'* More than this, he had discussed in 
temperate fashion the maintenance inviolate of 
the rights of the States and had quoted with^appar- 
ent approval the constitutional guarantee for the 
return of escaped slaves. When, after Sumter 
had been fired upon. Congress met on the 4th of 
July, he submitted an argument aimed at the 
destruction of the last vestige of so-called State 
sovereignty. He asserted that not one of the 
States had ever been a State out of the union— ^ 
a point previously emphasized by Webster in his 
reply to Haynes. The original colonies became 
"free and independent States'' in name only when 
the Declaration of Independence was signed. 
The union, he showed, had created the States. 
"Having never been States, either in substance or 



62 FEDERAL POWER: ITS GROWTH 

in name," he argued, "outside of the union, 
whence this magical omnipotence of 'State rights,' 
asserting a claim of power to lawfully destroy the 
union itself? Much is said about the 'sovereignty' 
of the States, but the word even is not in the na- 
tional Constitution, nor, as is believed, in any of 
the State Constitutions. What is a 'sovereignty' 
in the political sense of the term? Would it be 
far wrong to define it 'a political community with- 
out a political superior?' Tested by this, no one 
of our States, except Texas, ever was a sov- 
ereignty, and even Texas gave up that character 
on coming into the union, by which act she 
acknowledged the Constitution of the United 
States and the laws and treaties of the United 
States made in pursuance of the Constitution to 
be for her the supreme law of the land." 

This was new doctrine to be laid before the 
American people but the inevitable logic of cir- 
cumstances compelled its acceptance. Lincoln 
gave force to his utterance by acts which, under 
any other conditions, would have led to his im- 
peachment. He called for militia volunteers to 
serve for three years, and for large additions to 
the army and navy, without waiting for Congress 
to exercise a power imder the Constitution; he 



AND NECESSITY 63 

Issued a proclamation blockading the ports of the 
southern States; and, finally, because of disturb- 
ances In Maryland he directed the suspension 
of the writ of habeas corpus at any point of the 
military line between Philadelphia and Washing- 
ton, a territory not In rebellion. Lincoln ex- 
plained to Congress that **these measures, whether y 
strictly legal or not, were ventured upon under 
what appeared to be a popular demand and a 
public necessity, trusting then, as now, that Con- 
gress would ratify them." He justified his action 
In suspending the writ of habeas corpus, also, on 
the ground that a dangerous emergency existed, 
although he expressed a doubt whether the power 
was vested In him or In Congress. Judge Taney, 
acting In the District Court, decided that his ac- 
tion was unconstitutional. Afterwards Congress, 
representing the people, stepped Into the breach 
and exercised the authority to the extent of direct- 
ing the suspension of the writ throughout the 
United States. 

Every year of the war made the people more 
and more familiar with the omnipotence of the 
Federal government. They accepted, not alto- 
gether without mental reservation, the seizure of 
persons by Federal authorities In peaceful States, 



64< FEDERAL POWER: ITS GROWTH 

the prisoners being denied either the writ of 
habeas corpus or trial by jury. The provisions of 
the Constitution which guaranteed to the people 
that the right to be secure in their persons, houses, 
papers and effects, against unwarrantable searches 
and seizures, shall not be violated; which forbid 
arrest without warrant, and which assure each 
accused person *'a speedy and public trial by an 
impartial jury,'* were daily disregarded. The so- 
called Confiscation Act, by which, through legis- 
lative enactment, millions of dollars' worth of 
property were declared forfeited, although a sup- 
plemental joint resolution provided that real estate 
forfeiture was not to extend beyond the natural 
life of the offenders who came within the provis- 
ions of the Act, was but one of the many examples 
of the extent to which the Federal government 
could and did go. Practical illustrations of the 
power of the Federal government were visible on 
every hand. There was not time to question or 
to reason. Throughout the whole length and 
breadth of the land there was universal acqui- 
escence in the most extreme measures because it 
could not be otherwise. When it was treason to 
utter a thought which reflected upon the Federal 
government, the people learned to respect, if not 



AND NECESSITY 65 

always to love, the authority which that govern- 
ment exercised with unsparing hand. "Central- 
ization," says Dunning, in his "Essays on the Civil 
War and Reconstruction," "was the order of the 
day. Conspicuous among the illustrations of this 
fact appear the substitution of a national for a 
State system of banking and currency; the crea- 
tion of a national militia system to occupy the 
field once held by the State systems, and the 
sweeping jurisdiction conferred by the Habeas 
Corpus Act upon the national judiciarv at the ex- 
pense of the State courts." ^ 

Nor was this all. Through the fourteenth and 
fifteenth amendments to the Constitution the peo- 
ple were to learn that the States could be told 
what they could do and could not do respecting 
their citizens in the matter of equal enjoyment 
of privileges and immunities and the right to vote. 
In their provisions these amendments were far 
more definitive of the subordinate gharacter of a 
State than any previous clause in the Constitution 
and they never could have been adopted if the 
Nation had not loomed large in the public mind. 
This same point of view tolerated strong meas- 
ures by the Federal government in the reconstruc- 
tion period and enabled proclamations to be issued 



66 FEDERAL POWER: ITS GROWTH 

and laws to be passed which would not have been 
possible before 1861. It is not within the prov- 
ince of this work to enter upon a political history 
of the war period, although the subject deserves 
adequate treatment, while the volumes on the 
military history form a library in themselves. 
Our present purpose is to emphasize the psycho- 
logical effect upon the American people of wit- 
nessing demonstration after demonstration of the 
transcendent power of the Federal government. 
Amid the excitement and the peril which followed 
the fall of Sumter there was neither opportunity 
nor disposition to analyze too closely the acts of 
the President and of Congress; and later in the 
war the people became callous to the widest ex- 
ercise of Federal authority. They realized that 
"the bundle of sticks" had become compressed 
under the stress of war into one compact piece of 
timber. The doctrine of State sovereignty had 
been literally re-cast in the fiery furnace. The 
people were permeated with the spirit of na- 
tional union. It was not the governments at 
Springfield or Albany or Harrisburg, but the Gov- 
ernment at Washington which still lived. The 
eyes of the nation were thereafter to be focused 
upon the national capital. The political entities 



AND NECESSITY 67 

of the States became overshadowed by the na- 
tional feeling. The outlines of the Federal gov- 
ernment, on the other hand, stood out against the 
horizon like the Parthenon on the Acropolis at 
Athens, distinct, commanding and supreme. 



68 FEDERAL POWER: ITS GROWTH 



V 



Chapter V 

THE DOCTRINE OF PARAMOUNT NECESSITY 

THE logical result of the convincing demon- 
stration of Federal omnipotence soon be- 
came apparent. The people, through their duly 
elected Representatives, instinctively turned to the 
Federal government to secure the accomplishment 
of reforms which could not be reached in any 
other way. During the Civil War they had seen 
the Federal power exercised arbitrarily and some- 
times harshly, but always effectively. This was 
the fact that impressed the American mind. It 
was the achievement of results by direct methods 
which appealed to the masses. The Initiative 
toward the larger manifestation of Federal author- 
ity was now put forth by the people themselves. 

The first reform which demanded attention was 
the substitution of a jiational banking system for 
the unsafe and troublesome operation of State 
banks. There was, of course, no authority in the 



AND NECESSITY 69 

Constitution for the Federal government to go 
into the States and throttle these institutions but 
there was in the Constitution a provision which 
authorized the levying of taxes. What could not 
be done by direct means could be accomplished by 
indirection. It was only necessary to place a tax 
upon all State bank issues sufficiently high to ren- 
der their circulation unprofitable and the deed was 
done. Such a law was enacted in 1864 and was 
upheld by the Supreme Court. 

The extinction of State bank currency was ac- 
complished so simply and so easily that q^ite nat- 
urally the people invoked the aid of the Federal 
power for the suppression of the lottery evil. 
Times had changed since Congress had authorized 
the holding of a government lottery in the Dis- 
trict of Columbia and there was a loud demand 
for reform. Some attempt had been made by 
Congress to keep the tickets and literature of 
''illegal lotteries" out of the mails but the legisla- 
tion had not been effective because the express as 
a means of transportation was still available, and 
because the lottery companies, in order to escape 
all interference, established themselves in con- 
tiguous Central American territory. Congress, 
therefore, in 1890 passed "an act for the suppres- 



70 FEDERAL POWER: ITS GROWTH 

slon of the lottery traffic through national and In- 
terstate commerce and the postal service subject to 
the jurisdiction and laws of the United States." 
The law not only prohibited any person from 
bringing into the United States or depositing in the 
mails any lottery ticket or lottery advertisement 
but forbade these things from being carried "from 
one State to another." This was a novel concep- 
tion of the extent of the power of the post office 
and was the first law which seemed to bear within 
its provisions the germ of apparent unconstitu- 
tional encroachment upon the police power of the 
States, this consideration being swept aside by the 
doctrine of paramount necessity. "The demand 
for the suppression of this lottery traffic comes 
from all sections of the country," said Represen- 
tative Broderick, in charge of the bill, and after 
adding that "this lottery business has grown to 
such an extent that it has checked the moral sense 
of the people of the entire country," he had no 
other argument to offer. None was needed. If 
the people demanded it, it must be done. There 
was no serious debate upon the merits of the 
proposition from a constitutional point of view 
in either the Senate or the House and It became a 
law by a practically unanimous vote. 



AND NECESSITY 71 

But what the people wanted and what the Con- 
stitution gave Congress the power to enact were 
widely different matters and the Supreme Court 
was called upon to adjudicate the question. The 
arrest of a man who shipped lottery tickets from 
Texas to California was contested upon the ground 
that the regulation of lotteries was wholly within 
the jurisdiction of the police power of the States. 
The Supreme Court in 1903 overruled this conten- 
tion, deciding that lottery tickets were subjects of 
traffic and their transportation by common car- 
riers from one State to another was interstate com- 
merce which Congress might prohibit under its 
power to regulate commerce among the States. 
One sentence in the majority decision illustrates 
the principle which has been uppermost in sustain- 
ing all enlarged grants of Federal power. "As a 
State may, for the purpose of guarding the morals 
of its own people," said Justice Harlan, "forbid all 
sales of lottery tickets within its limits, so Con- 
gress, for the purpose of guarding the people of 
the United States against the Widespread pesti- 
lence of lotteries' and to protect the commerce 
which concerns all the States" — which phrase 
seems to have been inserted as a secondary and 
saving clause — "may prohibit the carrying of lot- 



72 FEDERAL POWER: ITS GROWTH 

tery tickets from one State to another." This idea 
of paternally safeguarding the morals of the peo- 
ple through legislation which stretched the Con- 
stitution to its utmost limit — an idea which per- 
meates present-day Congressional enactmentj — did 
not, however, meet with the approval of the en- 
tire court. As a matter of fact, the court was 
almost equally divided, five in the affirmative and 
four in the negative. Among the dissenters was 
Chief Justice Fuller, who characterized the opin- 
ion of the court as **a long step in the direction of 
wiping out all State lines and the creation of a 
centralized government." He differentiated be- 
tween the moral and the legal aspect. "It will not 
do to say," he declared, "that State laws have 
been found to be ineffective for the suppression of 
lotteries, and, therefore, Congress should inter- 
vene. The scope of the commerce clause of the 
Constitution cannot be enlarged because of pres- 
ent views of public interest." 

But even though it might be by the narrow ma- 
jority of one, the lottery evil was blotted out by 
invoking Federal aid, which was the result de- 
sired, and the people did not care how close was 
the margin of strength so long as the victory was 
won. It was but natural, therefore, that upon the 



AND NECESSITY 73 

next occasion of public necessity the strong arm 
of the government should again be brought into 
requisition. In the year 1893 there was a men- 
ace of cholera and the suggestion of a national 
quarantine met with instant favor. It is an inter- 
esting fact in this connection, as showing how 
popular sentiment can change in a century, that 
in 1799 a law was passed by Congress directing 
Federal custom revenue officers "to duly observe 
the quarantine laws of any State and faithfully 
aid in their execution," while in 1898 Congress 
enacted a law which empowered and authorized 
State quarantine officers "to act as officers of the 
national quarantine system and shall be clothed 
with all the powers of United States officers for 
quarantine purposes." Herein was a complete 
reversal of the relative importance of State and 
Federal officers. When the Federal government 
was given full control of the quarantine system the 
law went so far as to authorize the Secretary of 
the Treasury, in the event that the quarantine 
regulations of any State or municipality were not, 
in his opinion, sufficient to prevent the introduction 
of infectious or contagious diseases from foreign 
countries, to promulgate rules and regulations 
which would supersede State law. This, indeed, 



74 FEDERAL POWER: ITS GROWTH 

was Investing a Federal official with extensive 
power, but In this case, as In every other, the plea 
of necessity was successfully raised. The majority 
report In the House, submitted by Representative 
Rayner, a Maryland Democrat, Insisted that It 
was "of the utmost Importance that something 
should be done," and added: 

"Some of the States — but very few Indeed — 
have ample and efficient quarantine regulations, 
while others have legislation upon the subject 
which Is utterly Impotent for the purpose for 
which It was designed, and still others have no 
statutes or provisions upon the subject at all. It 
is Idle and useless to say that this is a matter 
that ought to be left to the conflicting laws of 
the different States. No one^State has It within 
its power to protect itself from the Importation 
of an epidemic." 

In this brief paragraph, written little more than 
twenty years ago, is embodied the consideration 
which has had such a controlling influence upon 
the growth of Federal power. Some States have 
good legislation, others poor legislation, and still 
others no legislation at all. This is, apparently, 
good and sufficient reason why all the patchwork 
laws of the States should be superseded by a 
blanket statute enacted by the Federal Congress. 



AND NECESSITY 75 

The argument is appealing and effective, even 
though, as when the quarantine law was under con- 
sideration, a few of the old-time faith utter their 
protest. There was something novel, at least, in 
the doctrine that a Federal official should make 
laws which would govern the States and that he 
was himself to be the judge of whether a State or 
municipal law was sufficient. It was pointed out 
that it might be possible for a Federal official in 
Washington to frame a code of laws which would 
restrain the personal liberty of a citizen of New 
Jersey returning from New York, even though his 
actions would be wholly legal according to btate 
law, *'and irrespective of the fact that he is in no 
way engaged in commerce." The bill was further 
criticized as "a long stride in the direction of Fed- 
eral control of matters hitherto exclusively within 
the jurisdiction of the State," while the minority 
report, written by Mr. Mallory, of Florida, con- 
tained this caustic comment: 

"On the plea of necessity the House of Rep- 
resentatives is asked once more to organize a 
raid upon State authority, to invade the sacred 
domain of personal liberty, to wrest from the 
local authorities of the States a power which up 
to this time has been exclusively theirs, and, in 
order to effectually secure these ends, to delegate 



76 FEDERAL POWER: ITS GROWTH 

to a single administrative officer its high legisla- 
tive functions." 

All of which was doubtless true, as well as the 
further comment that the Secretary of the Treas- 
ury was made a Supreme Court to decide upon the 
sufficiency of State laws. Protest was in vain. 
Even a previous opinion of the United States Su- 
preme Court, as handed down by Associate Justice 
Davis, to the effect that "the power to establish 
quarantine laws rests with the States and has not 
been surrendered to the general government," was 
disregarded. A few stalwart champions of State 
rights stood like Leonidas at the pass of Ther- 
mopylae, but over them rode rough-shod a large 
majority of the people's representatives. All their 
arguments and assertions faded away before the 
-xiverwlielmlng common-sense of the counter-prop- 
osition that uniformity in quarantine service and 
regulation was essential to public safety and that 
this conformity, to say nothing of efficiency and 
authority, could not be obtained except by vesting 
complete eontrol in the Federal government. It 
was a question of fact against theory and this is a 
practical age. The solid and substantial fact 
triumphed over a thin and almost obsolete Idea. 
The doctrine of paramount necessity was again 



AND NECESSITY 77 

invoked for the extension of Federal authority in 
the protection of the people against impure food 
and drugs, a matter which might very properly be 
considered as wholly within the jurisdiction of the 
States. On June 30, 1906, an act was approved 
which made it a serious misdemeanor to ship from 
one State to another any misbranded or adulter- 
ated article of food or drugs. The standards by 
which these articles were to be judged were to be 
set forth in rules and regulations framed by three 
Federal officials, the Secretary of the Treasury, 
the Secretary of Agriculture and the Secretary of 
Commerce and Labor. The act gave the bureau 
of Chemistry the right to examine specimens, pro- 
vided for the confiscation of illegal articles, gave 
Federal courts jurisdiction over prosecutions and 
went into much detail as to the manner in which 
the law should be administered. Long before this, 
in 1 89 1, the Senate had passed a bill which looked 
toward securing purity of food and drugs, and in 
1902 a law v/as enacted which authorized the Sec- 
retary of Agriculture "to establish standards of 
food and food products and determine what are 
regarded as adulterations therein for the guidance 
of the officials of the various States and the courts 
of justice." This law was so palpably within the 



78 FEDERAL POWER: ITS GROWTH 

domain of Congress as to excite no comment. 
Under it certain standards were duly proclaimed 
and some of the States passed laws in conformity 
therewith. It did not, however, prevent fraud 
from being practiced upon the people and the ad- 
vocates of governmental control saw another op- 
portunity to extend Federal authority. The pres- 
ent law was then prepared and introduced in Con- 
gress. The report which accompanied the bill in 
the Senate was brief and perfunctory, embracing 
only two sentences, with neither reason nor argu- 
ment for the proposed legislation. In the House 
the majority report brought forward the familiar 
plea. "We believe," It asserted, "that every one 
recognizes the necessity of governmental regula- 
tion to prevent the sale of adulterated, poisonous 
or other injurious food products.'* The statement 
was frankly made that the object of the proposed 
law "is to obtain uniformity of food standards 
among the States," and then the report, again em- 
phasizing the word "necessity," continued: 

"The necessity for pure food laws is apparent 
to every one. Many of the States have endeav- 
ored to meet this necessity as far as they can, but 
the several States have proven unable to fully 
deal with the matter when affected by interstate 



AND NECESSITY 79 

commerce in adulterated and misbranded arti- 
cles. . . . The laws and regulations of the differ- 
ent States are divers, confusing and often contra- 
dictory.'* 

Very able and comprehensive — but also very in- 
effective — were the arguments in opposition to the 
measure. It was contended that "the power of 
government to regulate the sale of food products 
and dmgs, prohibit adulteration of the same, pre- 
scribe the manner in which they shall be branded 
and fix the size and weight of the packages in 
which such food products and drugs shall be con- 
tained, is admittedly an exercise of police power," 
and, therefore, not within the jurisdiction of Con- 
gress. The belief was expressed that the legisla- 
tures of the several States had full power and 
authority to enact such laws and protect the people 
of the States. It was further claimed that the 
States had enacted these laws and were enforcing 
them. The broad principle was laid down that 
"the power to protect the people of the various 
States in health, in morals and general welfare is 
inherent in the States — ^was reserved to the States 
by the Constitution, was not delegated to the Con- 
gress of the United States, and remains there to 
be exercised by the States at the will and pleasure 



80 FEDERAL POWER: ITS GROWTH 

of the legislatures of such States." Emphasis was 
laid upon the decision of the United States Su- 

j' preme Court in the case of Plumley vs. Massachu- 
setts (115 U. S. 461), which sustained the exclu- 

/ sive right of the State to pass and enforce laws for 
the protection of the health and morals of its 
people and to prevent the sale of articles of food 
manufactured in or brought from another State. 
Finally, the right of Congress to enact the pro- 
posed legislation was challenged and Congress was 
urged "to leave to the legislatures of the various 
States the duty of protecting the people of the 
States." 

Both challenge and appeal were in vain. As 
against grave questions of constitutionality came 
this pathetic plea — ^literally the last words spoken 
in the debate : 

"I trust no member of this House will so far 
forget the good of his constituents as to vote 
against this bill." 

In response to this all-persuasive argument the 
House passed the measure by a vote of 243 to 17. 
The vote in the Senate was 62 to 4. Thus was 
the Pure Food Law enacted — a law which has im- 
measurably stimulated the idea of the supremacy 



AND NECESSITY 81 

of the Federal government. Section 9 of the stat- 
ute releases from the danger of prosecution any- 
retail dealer who has the guarantee of a manu- 
facturer, wholesaler or jobber that the articles fur- 
nished him are not misbranded or adulterated. 
The consequence is that nearly every manufac- 
tured article of food which now enters the house- 
hold bears the magic legend, ^'Guaranteed under 
U. S. Pure Food Law," while the advertisements 
in newspapers and street cars assure the would-be 
purchaser that pickles and shrimps and catsup and 
herring bear the seal of Federal approval. No 
one can estimate the psychological effect which this 
constant reiteration has upon the public mind. It 
has accustomed millions of people to regard the 
Federal government as the personal protector of 
their welfare and has led them to invite further 
exercise of Federal power. 



8^ FEDERAL POWER: ITS GROWTH 



Chapter VI 

FEDERAL CONTROL OVER RAILROADS 
AND TRUSTS 

THE old proverb that fire Is a good servant 
but a bad master became, as the country 
developed, particularly applicable to the railroads. 
The transportation lines had knit together the 
widely separated sections of the United States and, 
with the telegraph, had inspired the American 
people with a sense of unity. They were, in them- 
selves, the very essence of the spirit of Federalism. 
They made the boundaries of the States of no 
importance. Under conditions of speed and com- 
fort the traveler from the east to the west or 
from the north to the south paid no heed to the 
States traversed during his journey. It was the 
United States as one vast and solidified country 
which impressed itself upon his mind and this be- 
came especially true when the trans-continental 
roads linked the Atlantic and Pacific coasts with 
bands of steel. As the country grew, howevet*, the 



AND NECESSITY 83 

railroads waxed in power. The corporations 
which owned them fondly imagined that they were 
beyond control and indulged in practices which 
were manifestly injurious to those who did not 
possess the influence to compel fair treatment. 
When this condition arose some of the States at- 
tempted remedial measures, either through the 
creation of railroad commissions or the enactment 
of laws which could only be effective within State 
boundaries. The so-called Granger movement in 
the middle west in the early 8o's was an expres- 
sion of resentment against railroad don^nation; 
but the reforms which this popular uprising suc- 
ceeded in accomplishing were necessarily re- 
stricted. It was evident that this new menace to 
the public welfare could not be held in restraint 
except through the exercise of Federal power, nor 
was there any method whereby this authority could 
be brought into play except through the enactment 
of a Federal law. 

Congress approached the subject with much 
care and deliberation. There was no doubt as to 
the necessity for action. Complaints against the 
railroads were numerous, beginning with the as- 
sertion that local rates were unreasonably high, 
as compared with through rates, and ending with 



84i FEDERAL POWER: ITS GROWTH 

charges of wasteful and extravagant management, 
with the consequent Imposition of a needless tax 
upon the shipping and traveling public. The para- 
mount evil was the unjust discrimination between 
persons and places In the matter of freight and 
passenger toUs. While there was no question as 
to the prevalence of unsatisfactory conditions, 
there was much hesitation as to the methods by 
which they were to be remedied and still more 
uncertainty as to the extent of the authority which 
Congress might exercise In the premises. Many 
months were spent in Inquiry, the result being a 
recommendation that a commission be created 
which should be Invested with Federal control of 
all the railroads in the United States. This was 
thirty years ago, at which time It was necessary 
to argue at considerable length in favor of the 
now universally conceded principle that the regu- 
lation of Interstate commerce, even to the extent 
of fixing rates and traffic schedules, Is a Federal 
function. At that time, too, there were railroad 
commissions In some twenty States which were 
struggling with the problem of railroad regula- 
tion, but Investigation proved that their duties 
were mainly advisory and their recommendations 
generally Ineffective. This made some plan of 



AND NECESSITY 85 

Federal control absolutely necessary. It was for- 
mulated none too soon. Thirty years ago there 
were only 121,000 miles of railroad in the United 
States, which had been constructed at a gross cost 
of $5,000,000,000. To-day there are 264,378 
miles of railroad, with nearly 2,500 separate cor- 
porations representing a capitalization of over 
$21,000,000,000 and employing 1,409,000 peo- 
ple. The enormous power wielded by this aggre- 
grate of wealth could not have been controlled by 
the diverse legislation of individual States. Noth- 
ing less than a compact law, enforced by the 
strength of the Federal government, could have 
held it in restraint. 

Since the first Interstate Commerce Commis- 
sion law was passed in 1887 It has been frequently 
amended; but each addition has increased. Instead 
of decreased, the power conferred upon the 
agents of the Federal government. More than 
once the argument has been made that the con- 
stitutional authority given to Congress to regulate 
commerce among the States could not be delegated 
to a commission, and that regulations promulgated 
by such a commission could not take the place of 
laws enacted by Congress. The argument has 
fallen upon deaf ears. It was evident that Con- 



86 FEDERAL POWER: ITS GROWTH 

gress could not give time to the consideration of 
the multitudinous details affecting railroad traffic, 
besides which the danger which threatened was 
so imminent that there was no patience with those 
who would split hairs over a technical construc- 
tion of the Constitution. The report of the Sen- 
ate committee, upon which the Interstate Com- 
merce Commission bill was based, stated truth- 
fully that *'no general question of governmental 
policy occupies at this time so prominent a place 
in the minds of the people as that of controlling 
I the steady growth and extending influence of cor- 
porate power and of regulating its relations to 
the pubHc, and there are no corporations," it was 
added, '^'so directly connected with the public as 
the railroads." Pooling and rebates had already 
grown to be nation-wide evils. Each railroad cor- 
poration was a law unto itself and as it grew in 
extent and wealth and influence, it became more 
and more callous as to the public welfare. Expen- 
sive lobbies were maintained in each State capital 
to thwart antagonistic legislation or advocate sel- 
fish propositions. Passes were distributed freely 
as an insidious form of influence, and there was no 
hesitation in the use of still more objectionable 
methods of obtaining requisite votes. 



AND NECESSITY 87 

To-day the railroad corporations, once so 
haughty and independent, bow in complete submis- 
sion to Federal power, first exemplified in the In- 
terstate Commerce Commission and now concen- 
trated in the Director General of Railroads. In 
the early days of Federal supervision a few State 
legislatures attempted to preserve a semblance of 
jurisdiction by fixing the maximum rate to be 
charged wnthin State boundaries, but as intrastate 
railroads are of minor importance, the legislation 
was necessarily limited in the extent of its appli- 
cation. Under war conditions the existence of 
the State is no longer considered. Federal control 
is complete. Even before the government took 
over the roads, however, the Interstate Commerce 
Commission had developed into one of the most 
important bureaus of the Federal system, costing 
over $1,000,000 annually to maintain. The prac- 
tically unlimited jurisdiction conferred by Con- 
gress upon the Commission transferred the activi- 
ties of railroad officials from the State capitals to 
the national capital, but reprehensible methods 
were no longer in vogue. There was a vast dif- 
ference between dealing with widely separated 
and obscure State legislators on the one hand, and, 
upon the other hand, with Interstate Commerce 



88 FEDERAL POWER: ITS GROWTH 

Commissioners, and, at present, a Director Gen- 
eral of Railroads, appointed by the President 
and typifying the embodiment of Federal power. 
These officials can and do regulate and govern the 
railroads, not only in reducing or increasing rates 
within vast territory embracing many States, but in 
important matters of finance and administration. 
The present system of governmental control is, as 
yet, largely experimental; but even before we de- 
clared war against Germany, the American people 
were so thoroughly convinced that they had acted 
wisely in giving the Federal Commission plenary 
authority that when the Commerce Court, created 
for the purpose of reviewing the findings and or- 
ders of the Commission, rendered some judgments 
nullifying the work of the Commission, the de- 
mand for the abolition of the Court became too 
insistent for Congress to withstand. This expres- 
sion of confidence in the Interstate Commerce 
Commission was but another expression of popu- 
lar satisfaction with Federal control. The result 
which was sought for has been achieved. The 
subordination of the railroad corporations to 
Federal authority is now a finality; and if the 
results shall be advantageous — although this is not 
yet certain — the minds of the people will be 



AND NECESSITY 89 

strengthened In the belief that Federal power is 
a beneficent thing. The progress of the years is 
shown by the fact that the agency which did so 
much to inculcate the Federal spirit by the prac- 
tical obliteration of State boundaries is now 
brought conclusively under Federal control. 

Nor was railroad domination the only dan- 
ger with which the legislatures of the States could 
not successfully cope. The great commercial de- 
velopment of the country had resulted in the for- 
mation of monopolistic combinations, popularly 
known as trusts. Some of these huge corporations 
practically controlled the entire field of the indus- 
try In which they operated. The Standard Oil 
Trust, for Instance, "manufactured more than 
three-fourths of all the petroleum refined in the 
United States, marketed more than four-fifths of 
all the illuminating oil sold in the United States 
or exported from the United States, sold more 
than four-fifths of all the naphtha sold in the 
United States, and sold more than nine-tenths of 
all the lubricating oil purchased by railroad com- 
panies In the United States." The Sugar Trust, 
the Tobacco Trust, the Harvester Trust, the Steel 
Trust, the Copper Trust, — all these, and liter- 
ally hundreds of other monopolies, were formed, 



90 FEDERAL POWER: ITS GROWTH 

stifling competition, fixing prices, and, in too many 
instances, controlling legislatures in opposition to 
public welfare. It was evident, long before all 
these Trusts had been organized, that the Federal 
power must be invoked to regulate and control 
them. There was not a whisper of the rights of 
the States, therefore, when the Sherman Anti-trust 
bill was under consideration in the Senate in 1890. 
The situation was too serious to be further jeop- 
ardized by the interposition of State rights doc- 
trine. On the contrary, it was accepted that if 
the proposed law made illegal "every contract, 
combination In the form of trust or otherwise, or 
conspiracy In restraint of trade or commerce 
among the several States, or with foreign nations," 
it was plainly within the constitutional preroga- 
tive of Congress. Senator Sherman sounded the 
keynote which has Inspired all legislation extend- 
ing Federal power when he said : 

* 'While we should not stretch the powers 
granted to Congress by strained construction, we 
cannot surrender any of them; they are not ours 
to surrender; but whenever occasion calls, we 
should exercise them for the benefit and protec- 
tion of the people of the United States. And 
while I have no doubt that every word of this bill 
is within the powers granted to Congress, I feel 



AND NECESSITY 91 

that its defects are moderation, and that its best 
effect will be a warning that all trade and com- 
merce, all agreements and arrangements, all 
struggles for money or property, must be gov- 
erned by the universal law that the public good 
must be the test of all." 



"For the benefit and protection of the people 
of the United States," and "the universal law that 
the public good must be the test of all." In these 
two pregnant phrases are summed up the Alpha 
and Omega of the persistent and unchecked ex- 
tension of Federal power, even though the Con- 
stitution is strained thereby. The Senate was, in 
the old regime, generally supposed to be the 
refuge of the corporate interests; and yet when 
the anti-trust measure came to a vote Senator 
Blodgett, of New Jersey, had the unenviable dis- 
tinction of being the only Senator recorded in the 
negative. The sentiment of the Senate was ex- 
pressed most forcibly by Mr. Edmunds, of Ver- 
mont, Chairman of the Judiciary Committee, when 
he said that he was "in favor, most earnestly in 
favor, of doing anything that the Constitution of 
the United States has given Congress the power 
to do, to repress, and break up, and destroy for- 
ever the monopolies" of the character of the 



92 FEDERAL POWER: ITS GROWTH 

Sugar Trust and the Oil Trust, "because In the 
long run," he added, "they are destructive of the 
public welfare, and come to be tyrannies, grinding 
tyrannies." With these views uttered in the Sen- 
ate, and finding their endorsement in a practically 
unanimous vote. It was no wonder that the House 
of Representatives speedily and affirmatively 
acted and thus Interposed the Federal power be- 
tween almost omnipotent monopolies and a de- 
fenseless people. It Is true that it has required 
many years of tedious litigation to establish the 
law. Tlie corporations did not surrender their 
tremendous advantage without a struggle. Event- 
ually, however, the Sugar Trust, the Oil Trust and 
the Tobacco Trust were compelled to dissolve, 
while other combinations, facing the Inevitable, 
voluntarily consented to take the action which. In 
due course of time, the courts would have directed. 
For nearly a quarter of a century the law re- 
mained In effect, undergoing constantly broadening 
Interpretation in the courts. It was evident, how- 
ever, that there were loopholes which had not 
been closed, and the passage of the so-called Clay- 
ton Act, approved October 14, 19 14, placed fur- 
ther obstacles In the way of creation of monopo- 
lies. For Instance, price discrimination, "tying 



AND NECESSITY 93 

contracts," holding companies and interlpcjcing di- 
rectorates — all of which were utilized by unscru- 
pulous corporations to substantially lessen compe- 
tition — were prohibited under heavy penalties. 
Even this drastic law did not, however, meet 
every situation and in the Federal Trade Com- 
mission Act of September 26, 19 14, the Federal 
government was given power to deeply probe into 
the conduct of business. In this law there 
is recognition of the fact that unfair methods of 
competition prevail in the commercial world and 
means are provided for remedying the evil. Power 
to execute the provisions of the act is conferred 
upon five Commissioners appointed by the Presi- 
dent and confirmed by the Senate and the author- 
ity is of the broadest character. Action may be 
instituted "whenever the commission shall have 
reason to believe that any such person, partner- 
ship or corporation has been or is using any unfair 
method of competition in commerce." The com- 
mission is also empowered to require, by general 
or special orders, corporations engaged in com- 
merce, excepting banks and common carriers sub- 
ject to the act to regulate commerce, to furnish to 
the commission in writing such information re- 
specting their organization, business, conduct. 



94 FEDERAL POWER: ITS GROWTH 

practices and management as may be required. 
More than this, the commission Is accorded the 
legal right to make public such information, ex- 
cept trade secrets and names of customers, if such 
publication is deemed expedient. In the measure 
as originally drafted it was gravely proposed that 
Federal agents should at all times have the right 
to violate the privacy of any corporation doing 
an Interstate business to the extent of inspecting 
Its books and records and could also publish the 
result of Its investigation. In the law as finally 
enacted this provision Is somewhat restricted in 
that the right of examination is limited to those 
corporations which are being Investigated or have 
been proceeded against, but none the less we have 
now reached the point where Federal agents can 
become acquainted with the innermost details of 
corporate existence and can, if they so desire, pub- 
lish their knowledge to the business world. No 
corporation is safe from Federal investigation be- 
cause there is no manufacturing or other Industry 
worthy of the name whose goods do not pass across 
State lines. 

It has been suggested that corporations may 
find protection against unprovoked Federal in- 
quisition In the security which is guaranteed by the 



AND NECESSITY 95 

Constitution "against unreasonable searches and 
seizures" of persons, houses, papers and effects.. 
It is extremely doubtful whether this contention 
will hold. The Supreme Court of the United 
States is not likely to decide that an examination 
conducted for the public good into the affairs of 
a corporation is "unreasonable," even though no 
law has been violated by the corporation. The 
fact that Congress has authorized such examina- 
tion, that Federal officers are executing the law and 
that the burden of proving innocence rests by com- 
mon consent upon the corporation, renders It easy 
to predict that this particular form of the exer- 
cise of Federal power will not be modified In the 
slightest degree. 

While the Federal government has not yet at- 
tempted to compel the settlement of disputes be- 
tween common carriers engaged in interstate 
transportation and their employees engaged in 
train operation or train service. It has created a 
Board of Mediation and Conciliation, under the 
act of July 15, 19 13, to settle by mediation, con- 
ciliation and arbitration controversies concerning 
wages, hours of labor or conditions of employ- 
ment. Whenever such controversy arises and in- 
terrupts or threatens to interrupt the operation of 



96 FEDERAL POWER: ITS GROWTH 

trains to the serious detriment of the public inter- 
est, the Board of Mediation may offer its services 
to bring about an agreement or, upon the request 
of either party, is required to use its best efforts 
by mediation and conciliation to the same end. If 
an amicable adjustment cannot be secured, the 
Board endeavors to induce the parties to submit 
their dispute to arbitration, and, if successful, 
makes the necessary arrangements for such arbi- 
tration. There have been numerous instances of 
attempted mediation and while they have not al- 
ways been successful, the results have fully war- 
ranted the enactment of the law. All that is now 
lacking, in the view of the advocates of absolute 
Federal control, is compulsory obedience to the 
mandates of the Board and it is not unlikely that 
this omission will be supplied. The doctrine of 
paramount necessity will be invoked and then the 
Federal power will again protect the people 
against the undue prolongation of disputes which 
operate against the public interests. 



AND NECESSITY 9T 



Chapter VII 

THE FEDERAL POWER AND THE PEOPLE 

THE extension of the power and authority of 
the Federal government has been errone- 
ously characterized as Federal usurpation. The 
dictionary definition of the word ^'usurpation" is 
*'the act of seizing, or occupying and enjoying, the 
place, power, functions or property of another 
without right." This is not the situation as it 
exists in the United States to-day. Power and 
functions have been thrust upon executive officers, 
the visible impersonations of the Federal govern- 
ment, by the representatives of the people in Con- 
gress assembled. Hamilton very properly ob- 
served, in the "Federalist" papers, that the fabric 
of the American empire ought to rest upon the 
solid basis of the consent of the people; and if the 
people consent to grant large powers to the Fed- 
eral government, those powers are legitimate and 
are not usurped. 

It has already been shown that much of the 



98 FEDERAL POWER: ITS GROWTH 

Federal legislation enacted by Congress was based 
upon the doctrine of paramount necessity. This 
has not been, however, the only inspiring cause. 
There has been in the minds of the people an in- 
stinct, selfish though it might be, which has led 
them to gain for themselves all possible advantage 
through the extension of governmental functions. 
No one can analyze the appropriations made by 
Congress without being impressed by the fact that 
the people, through their representatives, have 
insisted upon the Federal revenues being diverted 
into channels which would insure the greatest good 
to the greatest number. Even Thomas Jefferson, 
stalwart opponent of Federalism as he was, could 
not resist the temptation offered by a surplus in 
the treasury in 1806, and suggested that the money 
be applied to "the great purposes of public educa- 
tion, roads, rivers, canals, and such other objects 
of public improvement as it may be thought 
proper." He doubted, however, the authority of 
Congress thus to dispose of the Federal funds and 
recommended an appropriate amendment to the 
Constitution. President Madison also called the 
attention of Congress to "the great importance of 
establishing throughout our country the roads and 
canals which can best be executed under National 



AND NECESSITY 99 

authority," and while he lauded the efforts of the 
States, pointed out that ^'National jurisdiction and 
National means" would be more effective. He 
recognized, as Jefferson did, a constitutional defect 
against carrying his program into effect, and later 
vetoed a bill which had passed Congress to use 
Federal funds for internal improvements, holding 
that the power to regulate commerce did not In- 
clude the power to construct roads and canals, nor 
im.prove the navigation of watercourses. He ex- 
pressed the belief, also, "that the permanent suc- 
cess of the Constitution depends upon « definite 
partition of powers between the General and the 
State Governments." President Monroe vetoed 
In 1822, upon the same grounds, "An act for the 
preservation and repair of the Cumberland 
Road"; in 1830 President Jackson vetoed the 
Maysville Turnpike bill, the first of a series of 
vetoes of internal Improvement bills; and as late 
as 1847 President Polk vetoed a river and harbor 
bill. The men In Congress who shared these views 
Introduced amendments to the Constitution by 
which they sought to fairly confer upon Congress 
the power which seemed to be a matter of doubt. 
No concerted effort was, however, put forth 
toward securing the adoption of these proposed 



100 FEDERAL POWER: ITS GROWTH 

amendments and, in the meantime, the door of the 
Federal treasury stood invitingly open. The de- 
sire to benefit from the expenditure of Federal 
funds overcame all scruples. A popular pressure 
which could not be withstood finally led Congress 
to embark upon a policy which, up to the present 
time, has resulted in the expenditure of nearly 
$1,000,000,000 for river and harbor improve- 
ments alone. It has not been unusual for appro- 
priation bills of this character to aggregate as 
much as $80,000,000 in a single year and for 
the enjoyment of participating in the distribution 
of this vast amount of Federal wealth, the States 
eagerly welcome the presence of Federal agents 
within their boundaries and hasten to demonstrate 
the navigability of streams which are only deep 
enough to float barges and logs. The construc- 
tion of public buildings has been another favorite 
method of securing the expenditure of Federal 
funds within State borders, only a few brave and 
conscientious spirits questioning the honesty of 
wholesale raids upon the National Treasury. 
The point to be emphasized, however, is that the 
idea of legitimatizing these appropriations by 
the adoption of an amendment to the Constitution 
has been utterly forgotten, because if the people's 



AND NECESSITY 101 

representatives decide that these expenditures are 
to be made, who shall say them nay? 

A well-filled Federal treasury invites a multi- 
tude of appropriations. It is the money of the 
people, and the representatives of the people spend 
it for their constituents. Who are these constitu- 
ents? The rural population of the United States, 
according to the last census, was over 48,000,000; 
of whom 25,000,000 were males, while the urban 
was only 42,000,000. In the fact that a ma- 
jority of the electorate of this country re- 
sides in rural districts is to be found the con- 
vincing reason for the extension of governmental 
functions in behalf of the agriculturist. The 
golden bait of getting something for nothing is 
dangled before the eyes of the farmers by vote- 
seeking Congressmen and the farmers, in turn, 
quite willingly forget the duties which the State 
owes to its citizens as they share in the benefits of 
Federal activities. The Department of Agricul- 
ture, which is the executive division of the govern- 
ment most intimately connected with the farm- 
ing class, has developed with hot-house rapidity 
under the nurture of Federalistic sentiment. The 
figures tell the story. In 1894, the division of bot- 
any in the Department of Agriculture cost $8,600 



102 FEDERAL POWER: ITS GROWTH 

per annum, while twenty years later the appro- 
priations for the Bureau of Plant Industry aggre- 
gated over $2,000,000. The expenditures of the 
Bureau of Forestry increased during the same 
period from $7,280 to considerably in excess of 
$5,000,000. The Bureau of Chemistry is com- 
paratively a new creation, but this does not pre- 
vent it from spending over $1,000,000 a year, 
mainly for the enforcement of the pure food law. 
Meat inspection, a responsibility from which the 
States have been relieved, also costs $1,000,000 
annually. Consideration for the welfare of the 
people is undoubtedly within the sphere of govern- 
ment, but it is certain that the founders of this 
republic never contemplated the degree of inti- 
mate regard for the individual which is now ap- 
parent. The vast sums expended by Federal 
agents concern every detail of farm life — not only 
as to advising the farmer as to the care of his 
animals and plants, including ornamental shrubs, 
and an inquiry into the diseases of ginseng, but 
how to bale and wrap his cotton, cure his tobacco 
and market his eggs. We have certainly reached 
a remarkable stage in our national existence when 
a Southern Democrat can announce upon the floor 
of the House, with apparent satisfaction, that 



AND NECESSITY 103 

"five hundred and thirty-five hog pastures were 
buiit In Georgia under the plan of the Federal De- 
partment of Agriculture." 

Another striking instance of bureaucratic 
growth is the Bureau of Standards. In its incep- 
tion, a little more than twenty years ago, this office 
consisted or an adjuster, a mechanician, a mes- 
senger and a watchman. To-day this Bureau ex- 
pends nearly one million dollars per annum, is 
housed in costly buildings surrounded by exten- 
sive grounds, and its duties range from investigat- 
ing the danger to life and property due to the 
transmission of electric currents at high potentials, 
to determining the fire-resisting properties of 
building materials. The people, through Con- 
gress, have granted these large sums and author- 
ized these unusual governmental duties on the the- 
ory, apparently, that the work is for the public 
welfare and cannot, or will not, be undertaken by 
the States. Certainly no other reason can be ad- 
vanced, for instance, for taking out of the Fed- 
eral treasury $400,000 in a single year for the 
sole purpose of eradicating the cattle tick. The 
most notable advance in recent years, however, is 
in the rural free delivery mail service. Nobody 
questions the fact that postal matters are within 



104 FEDERAL POWER: ITS GROWTH 

the jurisdiction of the Federal government but 
this one item demonstrates how great a single 
branch of public service can become. In the post 
office appropriation bill for 1894 appears a mod- 
est appropriation of $10,000 to be applied, under 
the direction of the Postmaster General, to experi- 
mental free delivery in rural communities other 
than towns and villages. The post office appro- 
priation bill for the current year carries for this 
experiment of two decades ago the enormous sum 
of nearly $55,000,000. 

So enlarged have the powers and duties of the 
Federal government become that the Civil Serv- 
ice Commission, which in 1894 consisted of three 
Commissioners and a dozen clerks, is now a most 
pretentious Bureau, requiring several hundred 
clerks and a large executive staff to handle the ex- 
amination papers of the army of government em- 
ployees. The field force of the Commission alone 
to-day costs more than the entire expense of the 
organization in 1894. The enforced growth of 
the Federal power also creates a constant demand 
for new Departments. Two have been established 
in recent years, the latest being the Department of 
Labor, while a Department of Health is being 
earnestly advocated. These Departments natural- 



AND NECESSITY 105 

ly increase the number of Bureaus. In the Depart- 
ment of Commerce, a comparatively new institu- 
tion, there are the Bureau of Corporations, the 
Bureau of Lighthouses, the Bureau of Foreign 
and Domestic Commerce, the Bureau of Fisheries, 
the Bureau of Navigation, the Bureau of Mines 
and several others. There are scores upon scores 
of Bureaus in connection with the eleven Depart- 
ments of the Government, and Government in- 
spectors or officials of various kinds now number 
thousands where, a few years ago, they could be 
counted by the score. In view of this, if is im- 
possible not to recall the fact that one of the com- 
plaints against King George III in the Declara- 
tion of Independence was in these words : 

"He has erected a multitude of new offices, and 
sent thither swarms of officers, to harass our 
people and eat out our substance." 

What is to be said to-day, when a multitude of 
new offices is being erected every year and when 
swarms of officers are maintained at enormous 
cost upon the public treasury? Of course, in the 
days of our forefathers, the objectionable officers 
were imposed upon the people by a monarch 
against their will. To-day the offices are created 



106 FEDERAL POWER: ITS GROWTH 

by laws enacted by the representatives of the peo- 
ple, the latter being now quite willing to be har- 
assed and to allow their substance to go into the 
pockets of Federal officials. 

The end is not yet. It is practically certain, 
for example, that within the next ten years the 
Bureau of Education, now a modest attachment 
of the Department of the Interior, will reach 
colossal size. There is in Congress a growing 
belief that the dispensing of education in wholesale 
fashion is a governmental duty, without regard to 
the efforts put forth, or the facilities provided by, 
the States. It is true that the House of Repre- 
sentatives, after an entire day spent in debate, 
declined to pass a measure which directed the 
Commissioner of Education to investigate illiter- 
acy among the adult population of the United 
States and report upon the means by which this 
illiteracy might be reduced or eliminated; but de- 
feat was only made possible by the opposing in- 
fluence of the all-powerful chairman of the Com- 
mittee on Appropriations, Mr. Fitzgerald, of 
New York, who protested against "a movement 
which, if continued and not stopped, means an 
entire change in our system of government, a 
practical subordination of State and local govern- 



AND NECESSITY 107 

ments, if not the elimination of local self-govern- 
ment in this country, and the building up of a 
great Federalized central government, which I 
believe is the greatest menace to this country." 
The defeat of this particular measure did not 
dishearten those who, despite Mr. Fitzgerald's 
warning, would indefinitely extend governmental 
activities. On February 23, 19 17, the Federal 
Board of Vocational Education was established. 
The law approved on that date provided for ap- 
propriations eventually aggregating $6,000,000 
annually "to be paid to the respective States for 
the purpose of cooperating with the States in pay- 
ing the salaries of teachers, supervisors, and direc- 
tors of agricultural subjects, and teachers of trade, 
home economics and industrial subjects, and in the 
preparation of teachers of agricultural, trade, in- 
dustrial and home economic subjects." It is fur- 
ther stipulated that any State, in order to secure 
the benefit of appropriations, shall, through its leg- 
islative authority, accept the provisions of the act 
and designate a State board to cooperate with the 
Federal Board. Upon the latter is imposed the 
duty "to make or cause to have made studies, in- 
vestigations, and reports, with particular reference 
to their use in aiding the States in the establish- 



108 FEDERAL POWER: ITS GROWTH 

ment of vocational schools and classes and In giv- 
ing instruction in agriculture, trades and industries, 
commerce and commercial pursuits, and home eco- 
nomics. Such studies, investigations, and reports 
shall Include agriculture and agricultural processes 
and requirements upon agricultural workers; 
trades, industries, and apprenticeships, trade and 
industrial requirements upon industrial workers, 
and classification of industrial processes and pur- 
suits; commerce and commercial pursuits and re- 
quirements upon commercial workers; home man- 
agement, domestic science, and the study of related 
facts and principles; and problems of administra- 
tion of vocational schools and of courses of study 
and instruction in vocational subjects." 

This broadening of the field of Federal work 
would seem to be all-embracing, but it is only the 
entering wedge. The Commissioner of Educa- 
tion now seriously proposes that Congress shall 
place at his disposal a sum eventually aggregating 
$22,000,000 a year In order to provide physical 
education, $20,000,000 to be used, in cooperation 
with the States, In paying the salaries of directors, 
supervisors and teachers employed In the work. 
The scope of this new Federal activity Is fully pre- 



AND NECESSITY 109 

sented in Section 2 of the proposed law which reads 
as follows : 

*'The purpose and aim of physical education in 
the meaning of this Act shall be; more fully and 
thoroughly to prepare the boys and girls of the 
nation for the duties and responsibilities of citi- 
zenship through the development of bodily vigor 
and endurance, muscular strength and skill, bodily 
and mental poise and such desirable moral and so- 
cial qualities as courage, self-control, self-subor- 
dination and obedience to authority, cooperation 
under leadership, and disciplined initiative; 
through adequate physical examination and the 
correction of postural and other remediable de- 
fects; through promotion of hygienic school and 
home life; and through scientific sanitation of 
school buildings, playgrounds and athletic fields 
and equipment thereof." 

It has also been suggested that the Federal gov- 
ernment undertake a general education survey of 
the United States and its possessions, although the 
author of the measure, with a qualm of State 
right's conscience, is willing to have States and lo- 
calities bear half the expense when they cooper- 
ate with the Federal Commissioner of Education. 
Many other educational schemes have been intro- 
duced in Congress — the establishment of an ele- 
mentary industrial school in the Appalachian 



110 FEDERAL POWER: ITS GROWTH 

mountains and the creation of educational parental 
courts, for instance, — and the number is certain to 
be increased in the near future. It is a conserva- 
tive prediction to say that some of them, will be 
enacted into laws. If the Federal government can 
go into the States to afford aid to the individual 
farmer; if it can insure the purity of every article 
of food manufactured within a State border ; if it 
can carry our parcels and take care of our surplus 
earnings, it can certainly undertake universal edu- 
cation. The argument of the greatest good to the 
greatest number, regardless of Constitutional lim- 
itations or State jurisdiction, will prevail in the fu- 
ture as it has in the past. Very extravagant may 
seem the propositions just cited, but they are not 
more so than actual laws and appropriations re- 
cently enacted, and the scope of which, ten or 
twenty years ago, would have been regarded as 
beyond imagination. 

There is one phase of Federal power, which, 
although granted by the people through their rep- 
resentatives, is still, in the minds of many, open 
to serious question. This is the reservation for 
future use of enormous tracts of land in the west- 
em States. The law which empowers the Presi- 
dent to set apart ^'public lands wholly or in part 



AND NECESSITY 111 

covered with undergrowth, whether of commer- 
cial value or not, as public reservations," was, at 
first, administered in restricted fashion; but, dur- 
ing Roosevelt's administration, the principle of 
conservation was carried by him to such a degree 
that Congress passed a law forbidding further 
forest reservations to be made in Colorado, Wy- 
oming, Idaho, Montana, Washington or Oregon, 
without its consent. President Roosevelt, aware 
that this prohibition would pass Congress, circum- 
vented its purpose by reserving additional areas 
aggregating 30,000,000 acres during the 4en days 
intervening after the Congressional enactnient had 
been presented to him for approval. There have 
now been withdrawn 192,000,000 acres under 
the Forest Reserve Act, and numerous forest 
rangers and other Federal agents now appear in 
the western country and compel obedience to Fed- 
eral regulations. Under laws enacted by the rep- 
resentatives of the people the imposition upon the 
western States has gone much further. Various 
statutes, which need not be recited in detail, tax 
the natural resources of the public domain through 
leases of grazing, oil, phosphate, asphaltum, coal 
and mineral lands for the benefit of the Federal 
treasury, while power plants are made to pay a 



112 FEDERAL POWER: ITS GROWTH 

royalty to the Federal government for each horse- 
power generated by falling water. In Colorado 
no less than 15,000,000 acres of land have been 
set aside as forest reserves, while 10,000,000 
acres of coal land have been withdrawn from en- 
try or a leasing value set upon them so high as to 
make their utihzation prohibitive. This vast 
territory is equal to the area covered by the en- 
tire States of Massachusetts, Connecticut, New 
Hampshire and Rhode Island. In Oregon over 

I 16,000,000 acres and in Washington more than 
10,000,000 acres are under Federal dominion, 
with no possibility of the States enjoying the bene- 
/ fit therefrom. 

/ The attitude of these States is naturally one of 

protest against alleged injustice. Their citizens 
point to the acts which enabled them to form a 
State government and which provided that "the 
State, when formed, shall be admitted into the 
Union upon an equal footing with the original 
States in all respects whatever," and claim a vio- 
lation of those statutes because the advantages 
possessed by the original States have been denied 
to them. Not only has the growth of population 
been greatly retarded by making settlement diffi- 
cult and restricting the area for home-builders to 



AND NECESSITY 113 

occupy, but, inasmuch as no taxes can be collected 
upon lands owned by the United States, the rev- 
enue, as well as the resources of the States, have 
been seriously impaired. It is pointed out, for in- 
stance, that the natural resources of Pennsylvania 
are not taxed by the Federal government, but ac- 
crue to the benefit of the State and its citizens, 
whereas in the western States they are a source of 
Federal profit. It is no wonder that in States 
where the Federal government exercises so much 
control there is a feeling of resentment, or that 
the assertion that these conditions represent a de- 
gree of interference in local affairs never before 
attempted in this country finds a responsive echo 
within their borders. 



V 



114 FEDERAL POWER: ITS GROWTH 



Chapter VIII 

BROADENING THE FEDERAL FIELD 

WHEN experiments had become experi- 
ences, the area of Federal control broad- 
ened with tremendous rapidity. A flood of Fed- 
eral legislation descended upon the country, sweep- 
ing everything before it. With breadth and im- 
petus the flood has now swept over the interven- 
ing State barriers and is still moving onward with 
irresistible force. 

These enactments have come as the logical out- 
come of events. The public mind has become 
completely saturated with a feeling of absolute 
faith in the efficacy of Federal power. Proposi- 
tions that a few years ago would have been ridi- 
culed are now accepted with composure and even 
cordiality, the mastery attained over railroad 
and other corporations having whetted the public 
appetite for further conquests. Naturally there 
was no hesitation when, in response to an impera- 
tive demand, the suggestion was made that the 



AND NECESSITY 115 

Federal power might be successfully employed in 
suppressing the traffic in women for immoral pur- 
poses. The so-called White Slave Act is an at- 
tempt on the part of the Federal government to 
lessen immorality by burdening vice with condi- 
tions and punishments which make Its practice 
difficult. The statute was an evolution. As long 
ago as 1875 a Federal act made it lUegal to im- 
port women for immoral purposes, but not being 
wholly effective, another law was passed in 1907. 
As this contained an unconstitutional provision, it 
was later amended. It did not remedy ^the evil. 
There was still a traffic in women which neither 
Federal nor State law had been able to reach. 
Once again, therefore, the Federal power was 
called into requisition and by an ingenious scheme 
the reform was accomplished under the compre- 
hensive authority given to Congress to regulate 
commerce among the several States. The act, as 
finally approved, forbids the transporting, or ob- 
taining transportation for, in Interstate or foreign 
commerce, any woman or girl for the purpose of 
prostitution or debauchery, or for any other im- 
moral purpose; and the Supreme Court has al- 
ready decided that the transportation need not be 
In or by an interstate carrier. Persuading, indue- 



116 FEDERAL POWER: ITS GROWTH 

ing, enticing or coercing any woman or girl to go 
from one State to another for acts thus made ille- 
gal is prohibited under heavy penalties. 

The law, however, goes still further. It em- 
braces intent or purpose in connection with trans- 
portation of women and girls for immoral pur- 
poses. This section of the law was severely 
criticized as bringing a purely mental operation 
under the domain of interstate commerce; and it 
was also questioned whether conversation could be 
regarded as being within the meaning of the word 
"commerce" in the Constitution. On the other 
hand, it was argued that if the transportation of 
lottery tickets could be prohibited, not because 
pieces of paper were in themselves harmful, but 
because of the Injurious connection between them 
and the entire scheme of the lottery, the inter- 
state transportation of women for the purposes 
of Immorality could also be made illegal. It was 
shown, too, that the Supreme Court had held that 
solicitation of business for a firm outside of its own 
State was a part of interstate commerce. It was 
not the arguments as to the constitutionality of 
the proposed law, however, which determined its 
^ enactment. It was the fact that the so-called 
V White Slave traffic "shocked the moral sense of 



AND NECESSITY IIT 

the nation," and the people, through their repre- 
sentatives, were bent upon its abolition, even if 
the power of the Federal Government had to be 
Invoked in devious ways. The fact that the 
United States Supreme Court has upheld the law 
In at least four decisions will further stimulate the 
exercise of the Federal power in overcoming the 
next evil which arouses nation-wide condemna- 
tion. 

Not only do men and women crossing State 
borders pass under the control of the Federal 
Government, but even the birds that fly through 
the air have been placed in the same category. In 
a law approved March 3, 19 13, making appro- 
priations for the Department of Agriculture, is a 
clause which declares that all migratory and In- 
sectivorous birds which do not remain perma- 
nently throughout the entire year in any State or 
Territory, "shall hereafter be deemed within the 
custody and protection of the Government of the 
United States, and shall not be destroyed or taken 
contrary to regulations hereinafter provided for." 
These regulations are to be promulgated by the 
Department of Agriculture, and ^nt or Imprison- 
ment is to be the punishment of any person con- 
victed of their violation. A provision in the law, 



118 FEDERAL POWER: ITS GROWTH 

not devoid of sarcastic humor, asserts "that noth- 
ing herein contained shall be deemed ... to pre- 
vent the States and Territories from enacting laws 
and regulations to promote and render efficient 
the regulations of the Department of Agriculture 
provided under this act.'* In other words, the 
moment the President of the United States made 
this statute effective by affixing his signature of 
approval, that moment all provisions of the game 
laws of all the States which were in conflict with 
a series of regulations framed by a Federal official 
at Washington were wiped out of existence. So 
completely has the Federal authority supplanted 
the authority of the States in this particular that 
recently, when citizens and land-owners in South 
Carolina desired to shoot ducks in that State dur- 
ing a certain month, they were compelled to confer 
with the Chief of the Biological Survey in Wash- 
ington, an appointed official paid a salary of 
$3,500 a year, in order to obtain the necessary 
permission, even though the season in which they 
desired to indulge in the sport was legal accord- 
ing to their State laws. 

Two reasons seem to have actuated the repre- 
sentatives of the people in Congress in this com- 
plete surrender of State sovereignty^ — first, that 



AND NECESSITY 119 

unless birds are safe-guarded the injury done by 
insects will Increase and that this protection could 
not be accorded except by the Federal Government 
owing to *'the multiplicity of State laws and the 
divergence of their provisions." The profundity 
of the argument brought to bear upon the Senate 
is shown in the favorable report made to that 
body upon the bill. ''But for the vegetation the 
insects would perish," it says, "and but for the in- 
sects the birds would perish, and but for the birds 
the vegetation would be utterly destroyed." Thus 
were rhythm and logic happily combined ; while it 
was also soberly quoted in the debate, as another 
reason for a Federal law, that although Texas 
makes the killing of a robin an offense punishable 
by a fine of $5, the law is not enforced by the State, 
wherefore the heavy hand of Federal authority 
must be laid not only upon Texas but upon every 
other State in the Union. As against such argu- 
ments as these, the serious presentation of State 
jurisdiction under the Constitution was naturally 
unavailing. In vain was it urged that the black- 
bird or the goose that wings its flight across the 
blue vault of heaven has neither consignor nor 
consignee, and is not, therefore, interstate com- 
merce; or that the Federal Government has no 



120 FEDERAL POWER: ITS GROWTH 

police power in the States for the protection of Its 
property not on Federal ground; or that it was 
preposterous to suppose that a barefoot boy could 
be arrested, taken before a Federal judge, and 
fined or imprisoned for an act which was not in 
violation of any local statute. Judicial determina- 
tion of the Constitutionality of this act is now 
pending in the United States Supreme Court in 
the case of the United States, plaintiff in errors 
vs. Harvey C. Shauver ; but, in the meantime. Con- 
gress has re-affirmed the law and has made it 
operative by granting to the Federal Government 
a generous appropriation for its enforcement. It 
is not surprising that an effort is now being made 
to place migratory fishes under Federal control, 
so that even the Mississippi catfish may erelong 
swim proudly under government protection. 

Another striking and most unusual instance of 
the exercise of Federal power was presented in the 
Congressional investigations of purely local strike 
conditions in West Virginia, Michigan and Colo- 
rado. It will be remembered that President 
Cleveland directed United States troops to be em- 
ployed in an effort, during the strike of railroad 
employees in Chicago, to insure the safe and un- 
interrupted transit of the United States mail, the\ 



AND NECESSITY 121 

local authorities being apparently unable to cope 
with the situation. There was justification for 
Mr. Cleveland's action. The conditions in Paint 
Creek, W. Va., in the spring of 19 13 were by no 
means analogous. There was trouble between the 
coal miners and the mine owners, but no Federal 
function suffered violation or interference. How- 
ever, In order to find an excuse for conducting a 
Federal inquiry Into a State condition, the Sen- 
ate Committee on Education and Labor was sol- 
emnly directed to proceed to Paint Creek and dis- 
cover "whether or not postal services have been 
or are being interfered with or obstructed in said 
coal fields" ; and "whether or not the immigration 
laws of this country have been or are being vio- 
lated, and whether there were any agreements or 
combinations entered into contrary to the laws of 
the United States; and, finally, if any or all of 
these conditions exist, to investigate and report 
upon the causes leading to such conditions." Alto- 
gether unavailing was the assertion of the Sen- 
ators from West Virginia that the State authorities 
were competently handling the situation. Equally 
futile was the charge that the resolution of author- 
ization offered only a thinly-clad excuse for an 
unwarranted Federal interference. The resolu- 



122 FEDERAL POWER: ITS GROWTH 

tlon was adopted and the Federal committee 
started upon its mission of inquiry. Its report was 
not submitted for a year. In the meantime, the 
strike had been settled; but the upholders of the 
doctrine of Federal control cited the presence of 
the Federal committee in the strike region as a 
powerful factor in restoring peace and order. 

The basis of the inquiry into the strike situa- 
tions in the copper district of Michigan and the 
coal fields of Colorado was identical with that set 
forth in the Paint Creek resolution ; and the House 
of Representatives having ordered the investiga- 
tions, the Congressional Committees visited the re- 
spective localities, not hesitating to summon local 
and State officials and question them as to the rea- 
son for the existing conditions. As a result of the 
Inquiry, the request has been made that strike- 
breakers be barred from going from one State to 
another, which is a new application of the author- 
ity to regulate commerce. There may be some 
question as to the propriety of Federal invasion of 
State territory when there Is not even prima facie 
evidence that any detail of Federal administration 
IS involved; but there Is no disputing the fact that 
the invaders went armed with a mandate from all 
the people, Issued through their representatives. 



AND NECESSITY 123 

It must be admitted, therefore, that the Federal 
investigators neither violated nor usurped power. 
They acted in accordance with law, enacted by 
those to whom the authority to make laws had 
been duly delegated by the people. 

The fight over the so-called Child Labor Law 
was lengthy and bitterly contested. The opposi- 
tion to its enactment came mainly from the South- 
ern States, for two reasons — first, because it is in 
the South that the doctrine of States' rights is 
finding its last citadel, and, second, because in that 
section child labor is very largely used. T^e doc- 
trine of paramount necessity, however, again pre- 
vailed and the measure became a law. In this 
case, as in many others, the desired result was at- 
tempted to be accomplished through indirection. 
It was manifestly futile to enact a law which should 
directly supplant the legislation of a State, but it 
was apparently possible to forbid the interstate 
shipment of any product of a mine or quarry upon 
which a child under sixteen years of age had la- 
bored or the product of any mill, cannery, work- 
shop, factory or manufacturing establishment 
whereon children under the age of fourteen years, 
or children between the ages of fourteen and six- 
teen years, had labored, except that in the latter 



124 FEDERAL POWER: ITS GROWTH 

case employment during eight hours between six 
o'clock a. m., and seven o'clock p. m., was per- 
mitted. This prohibition accomplished, of course, 
the reform so imperatively demanded by existing 
conditions; and although the Supreme Court of 
the United States, by the narrow majority of five 
to four, has declared the law unconstitutional, 
there is no doubt that Congress will amend the 
act so as to overcome this adverse decision. The 
reasons which have compelled the enactment of 
beneficent and humane Federal laws obtain with 
especial force in the matter of child labor and 
eventually the proposed and necessary reform will 
be secured. 

Another wide application of Federal power is 
embodied in the Federal Farm Loan Act, which 
was approved July 17, 19 16. This law was in- 
spired by the fact that while bank loans could be 
obtained upon stocks and bonds of approved se- 
curity, the farmer was financially handicapped be- 
cause he owned nothing but his land. It is not 
necessary here to review the four years of agita- 
tion which preceded the enactment of the law nor 
to rehearse the obvious arguments which were 
advanced by those who favored the legislation. 
Sufiice it to say that, it being apparently taken for 



AND NECESSITY 1^5 

granted that the States have neither the desire 
nor the ability to provide for the financial needs of 
the farmers within their borders, there is now a 
Federal Farm Loan Board, consisting of five mem- 
bers, including the Secretary of the Treasury, who 
is chairman ex-officio. This Board has divided 
the United States into twelve districts and has es- 
tablished Federal land banks, each with a sub- 
scribed capital of not less than $750,000. Na- 
tional farm loan associations have also been or- 
ganized under the provisions of the act, and, In 
fact, thousands of needy farmers have ^Iready 
been accommodated with funds. In view of the 
certainty that the operations of these Federal 
banks will extend into every community it is quite 
evident that the country will now witness In wide- 
spread fashion another demonstration of the 
beneficence of Federal power when exercised for 
the general good. It Is really not a far cry from 
these Federal farm loan banks to the governmental 
pawnshops maintained for the poor by France and 
Mexico. If for the stockholder and bondholder 
the government can provide a method of borrow- 
ing, and if the same advantage can be accorded 
the owner of land, there Is no reason why equal 
consideration should not be given to the citizen 



126 FEDERAL POWER: ITS GROWTH 

who can only pledge his personal effects. The 
whole transaction is merely one of degree. 

The bold stroke by which Congress established 
eight hours as a day's work on every railroad in 
the United States, except those less than lOO 
miles in length or street or interurban roads oper- 
ated by electricity, is another extension of Fed- 
eral power not to be lightly considered. The im- 
portance of the enactment is not alone in the fact 
that Congress can, almost over-night, effect an 
industrial revolution, but in its demonstration that 
we too often do our national thinking in terms of 
politics — a lesson which is serious enough if we 
are to continue moving forward along present 
lines. The demand of the 2,000,000 employees, 
known in railroad circles as the Four Brother- 
hoods, for the legal establishment of an eight- 
hour day, was coupled with the threat of a nation- 
wide strike and that, too, with a presidential elec- 
tion only sixty days distant. It was manifestly 
fatal for the Administration in power, from a po-, 
litical point of view, either for the strike to occur 
or for the Brotherhoods to fail in their desire. 
Consequently the law was hastily framed and 
passed with equal precipitancy, being approved by 
the President on September 3, 19 16. The oft-re- 



AND NECESSITY 127 

peated experiment of utilizing interstate com- 
merce as the agency to make the law effective was 
resorted to, as it can be at any time in the future 
when the organized employees of the railroads 
decide to formulate additional demands, especial- 
ly as the Supreme Court of the United States has 
decided that in the Constitutional right to ''regu- 
late commerce" is embraced the authority to 
specify hours of labor. Nor is it necessary to 
confine the outlook to railroad employees alone. 
Any class of men, sufficiently numerous and well- 
organized, can secure the same result. If a dema- 
gogue should reach the White House and truckle 
for votes in order to secure his reelection, and if 
a Congress of cowardly politicians should appear 
equally desirous of catering to those upon whom 
their retention in office largely depends, we might 
easily be confronted with a menacing situation. 

The path which has been opened by the passage 
of the eight-hour law is a wide one and no one can 
tell whither it will lead. Not so long ago some of 
the States enacted what are known as "full-crew" 
railroad laws but in other States similar measures 
were defeated. There is nothing to prevent a 
Federal law being enacted which will fasten the 
desired legislation upon all the States. All social 



128 FEDERAL POWER: ITS GROWTH 

and industrial reforms may be accomplished in the, 
same manner. Woman suffrage, with women 
wielding the ballot in more than twenty States, 
must be seriously regarded. When the women 
voters desire to invoke Federal power in behalf 
of altruistic principles and back their appeal with 
promise of support or threat of antagonism at 
the polls, the laws which they propose will be en- 
acted, and the units which we now designate by the 
name of States may find themselves more atro- 
phied than ever. 

Perhaps, after all, the climax of Federalism is 
to be found in the so-called Federal Reserve Act. 
Under this law, which has reformed the currency 
system of the country, a Federal Reserve Board 
has been appointed. It consists of seven mem- 
bers of whom two are the Secretary of the 
Treasury and the Comptroller of the Currency. 
The other five are named by the President and 
confirmed by the Senate. As all the national 
banks are required by the law to enter the Fed- 
eral Reserve system or forfeit their charters, with 
the privilege of similar affiliation accorded to 
State banks and trust companies, the entire mon- 
etary system of the country is thus placed under 
supervision of seven men, all of whom are, in turn, 



AND NECESSITY 129 

appointees, and to that extent creatures,, of the 
President. The total capitalization of the 7,579 
national banks thus brought together is over 
$1,000,000,000. Their deposits reach the tre- 
mendous aggregate of $22,882,000,000 addi- 
tional and this amount will be enormously in- 
creased by the receipts of the government, which 
are now deposited in the reserve banks instead 
of the Federal Treasury. Here, then, are seven 
men, located in the National Capital, agents of 
the Federal government, virtually holding many 
billions of dollars. While the wisdom of legal- 
izing this enormous power seems now unques- 
tioned, it is appropriate to recall the memorable 
fight made by Andrew Jackson against the Bank 
of the United States. There is a difference, of 
course, between that institution and the Federal 
Reserve banks controlled by the Federal Reserve 
Board, because the former was a private con- 
cern, even though chartered by Congress, while 
the latter are directly under government control. 
At the same time, the words of Andrew Jackson 
are not altogether without bearing upon the pres- 
ent situation. His struggle against the Bank was 
based upon his antagonism to the control of a vast f 
amount of wealth by a certain few; yet the Bank 



130 FEDERAL POWER: ITS GROWTH 

of the United States dealt with millions where 
the Federal Reserve Board has to do with bil- 
lions. The Bank of the United States, as Jack- 
son pointed out, "possessed the power to make 
money plentiful or scarce at its pleasure at any 
time or at any place by controlling the issues of 
other banks and permitting an expansion or com- 
pelling a general contraction of the circulating 
medium according to its will." This criticism 
applies with equal force to the Federal Reserve 
Board. It was also Jackson's opinion that ''to 
give the President the control over the currency 
and the power over individuals now possessed 
by the Bank of the United States, even with the 
material difference that he Is responsible to the 
people, would be as objectionable and dangerous 
as to leave it where it is." It Is not a far cry 
from this declaration of Jackson to the system 
now enacted Into law; and a feeling of anxiety 
naturally arises at the thought that some day 
there may be In the White House a President 
who would convert the Federal Reserve Board 
Into an Instrument for the accomplishment of his 
revenge or the furtherance of his ambition. Upon 
these seven men there rests a great responsibility. 
They can use the Federal power, as no other men 



AND NECESSITY 131 

can, to press the sensitive money nerve of the na- 
tion; and yet it must again be emphasized that 
this power was granted by the representatives 
of the people. It is true that the legislation which 
authorized It was recommended and urged with 
much insistence by the President, but it was not 
Incumbent upon Congress to unwillingly heed the 
presidential demand. Whether the control of 
billions of dollars by Federal agents is to be for 
good or 111, the representatives of the people are 
responsible and the people themselves must ac- 
cept the consequences. ^ 

As an evidence that we have not reached the 
limit of the application of Federal power, shoals 
of measures are Introduced In each succeeding ses- 
sion of Congress pointing the way to further ex- 
tensions. For Instance, Maryland, Rhode Island, 
New York, New Jersey, and West Virginia having 
adopted State laws to eliminate Idleness, and these 
laws having been executed with some degree of 
success. It is now proposed, through Federal legis- 
lation, to apply the same idea to the entire nation. 
There are also propositions to punish the false 
advertisement of any security or commodity which 
enters Into interstate commerce; to establish uni- 
form prices for uniform commodities ; to attach a 



132 FEDERAL POWER: ITS GROWTH 

Federal label to all fabrics and leather goods ; to 
provide for the Federal inspection and grading of 
grain; and to fix the size of fruit baskets. The 
National Wage Commission bill has many advo- 
cates. It provides that the President shall ap- 
point a wage commissioner for each Congressional 
district in the United States to investigate every 
complaint of alleged insufficient, inequitable or un- 
just wage. This, of course, would be Federal 
interference, supervision and control to the last 
degree. Senator Chilton, of Texas, has seriously 
proposed that the Federal Government shall es^ 
tablish a minimum wage of $9 per week for all 
females employed by persons, firms or corpora- 
tions doing an interstate commerce business. 
Another proposition defines and regulates invest- 
ment companies authorized to use the mail and 
makes the very act of using the mails a sufficient 
foundation for bringing any person, firm or cor- 
poration within the sphere of Federal control 

These instances could be multiplied. They Il- 
lustrate the tendency of the times. There is ab- 
solutely no limit to the phases which invite the 
application of Federal authority, apart from any 
question of war emergency. Congress has al- 
ready gone far; but judging the future from the 



AND NECESSITY 133 

past, It has only touched the edges of the great 
domain wherein Federal power may be exerted. 
No one can examine the record of the laws already 
passed, nor scan the list of measures awaiting 
action, without realizing that popular approval is 
bestowed upon every effort to Invoke Federal 
aid in the securement of beneficent results. 



134 FEDERAL POWER: ITS GROWTH 



Chapter IX 



THE SUPREME COURT AS THE BULWARK OF 
FEDERALISM 



THE people, through their representatives, 
invoked Federal aid to remedy nation-wide 
evils and prevent monopolistic domination. Those 
upon whom the heavy hand of Federal power was 
laid have appealed, in turn, to the Supreme Court 
of the United States. They have raised grave 
questions of constitutional interpretation and upon 
the decision of these questions much has depended. 
Fortunately for the people, the Supreme Court has 
approached the legal problems presented for its 
adjudication with a high conception of the respon- 
sibilities involved. More than this, it apparently 
has realized that only through the employment of 
the methods which the people had devised could 
the much-desired reforms be accomplished. It 
has, therefore, persistently upheld all forms of 
Congressional legislation. It has been the very 
bulwark of Federalism. It has gone to the utmost 



AND NECESSITY 135 

limit in affording a judicial foundation for Federal 
control. 

It is well that this has been the case. If instead 
of being in thorough sympathy with the spirit 
which created the Interstate Commerce Commis- 
sion and which inspired the Anti-Lottery Law, the 
Anti-Trust Law, the Pure Food Law, the White 
Slave Law, and the scores of other Federal enact- 
ments which entrusted Federal agents with the 
protection of life, health and morals of the people, 
the Supreme Court had displayed an antagonistic 
sentiment, the accomplishment of reform would 
have been delayed. It would not have oeen pre- 
vented, for, sooner or later, the people would 
have found some way to reach the desired end. 
The movement to resolve all questions of consti- 
tutional construction at the ballot box or the at- 
tempt to secure easy and frequent amendment of 
the Constitution, would have been greatly stimu- 
lated and, finally, prevailed. The fact is, how- 
ever, that the Supreme Court, although its mem- 
bers are properly far removed from poHtical in- 
fluence and popular clamor, has been thoroughly 
cognizant of and responsive to the increasing de- 
mand for the betterment of human life and its 
environment. No one to-day asks, with the guilty 



136 FEDERAL POWER: ITS GROWTH 

evasion of Cain, '*Am I my brother's keeper ?'* 
On the contrary, the responsibility of brotherhood 
is universally avowed and accepted. Legislation 
tainted with a suspicion of sordidness and selfish- 
ness, which benefits the few at the expense of the 
many, is shunned as an evil thing, while proposi- 
tions that seek to ameliorate human conditions 
are stamped with legislative approval. 

With this spirit the Supreme Court is in entire 
harmony. A statement recently made public shows 
that out of 563 decisions rendered between 1887 
and 191 1 upon questions involving what are known 
as social justice laws, it has rendered affirmative 
opinions in all but three. One of these held in- 
valid an anti-trust law of Illinois because it ille- 
gally discriminated in favor of certain classes. 
The second nullified a statute of Louisiana which 
forbade citizens to order insurance through the 
mail from foreign insurance companies, it being 
held that this law was an interference with the lib- 
erty of contract. The third was the famous bake- 
shop case, in which the court held unconstitutional 
the bakers' ten-hour day law in New York. On the 
other hand, it has sustained State laws for the 
suppression of gambling and bucket-shop and 
option speculation, for the prohibition of the sale 



AND NECESSITY 13T 

of liquor and cigarettes, for the regulation of cor- 
porations, the safety of miners and the abolition 
of child labor, and numerous other equally com- 
mendable objects. It has allied itself with the 
modern prohibition movement so thoroughly as to 
declare that the right to sell intoxicating liquors 
is not one of the privileges and immunities of citi- 
zenship granted by the Constitution. It has com- 
pelled the deportation of alien prostitutes and not 
only has it decided the White Slave Act to be 
constitutional, but has upheld it in every case> 
both in letter and spirit, even to the extent of de- 
claring that it does not impinge upon the reserved 
police powers of the State. With this knowledge 
of the high ideals which actuate the minds of the 
members of the Supreme Court, it is easy to ap- 
preciate its friendly attitude toward Federal legis- 
lation which seeks the betterment of the entire 
people. 

It might be supposed that the Supreme Court, 
in thus sustaining State progressive legislation, is 
committed to the idea that through the States, 
rather than through Federal agency, the largest 
degree of accomplishment is possible. Such, how- 
ever, is not the case. It aids and abets the States 
in their praiseworthy endeavors until Federal 



138 FEDERAL POWER: ITS GROWTH 

laws are enacted and then it Instantly recognizes 
the supremacy of Congressional action. Being 
observant, it is fully aware that the enactments 
of State legislatures are necessarily restricted in 
their beneficial effect. Each State is only one- 
forty-eighth of the whole. The State may do 
certain things, as was held in one of the Em- 
ployers' Liability cases, until Congress exercises 
its constitutional function, and then the Federal 
legislation supersedes all State law upon that sub- 
ject. Realizing that a Federal law benefits the 
entire nation, the court, whenever such is brought 
to its attention, hastens to sustain its legality if it 
rests upon the slightest foundation of constitu- 
tional authority. There have been only a few 
adverse rulings. One was the decision against the 
income tax law, the unconstitutionality of which 
was narrowly affirmed by a vote of five to four. 
The people have since remedied this defeat of 
their expressed will by adding an amendment to 
the Constitution. Another was the decision In 
which the first Employers' Liability Act was held 
to be invalid because it included within its provi- 
sions an employee not engaged in interstate com- 
merce. Congress thereupon passed an amended 
measure which has not only been sustained but has 



AND NECESSITY 139 

been declared to be paramount to all State laws. 

The restraining hand of Federal power has 
been laid by the Supreme Court upon State legis- 
latures which sought to bargain away the public 
health and the public morals, while peonage, al- 
lowed under the laws and decisions of some 
States, has been declared to be involuntary 
servitude within the meaning of the Constitution. 
The limitation upon State action is fully set 
forth in the decision in the case of Taylor vs. 
Thomas, In which it Is declared that judicial and 
legislative acts of a State, hostile in their gurpose 
or mode of enforcement to the authority of the 
Federal Government, or which impair the rights 
of citizens under the Federal Constitution, are 
Invalid and void. In the enforcement of the Four- 
teenth amendment, which provides that "no State 
shall make or enforce any law which shall abridge 
the privileges or Immunities of citizens of the 
United States; nor shall any State deprive any 
person of life, liberty or property, without due 
process of the law; nor deny to any person within 
its jurisdiction the equal protection of Its laws," 
the Supreme Court has demanded of the States 
a strict accountability. 

Numerous decisions have been rendered which 



140 FEDERAL POWER: ITS GROWTH 

insist that the prohibitions of this amendment 
extend to all the acts of a State, whether exer- 
cised through its legislative, its executive or its 
judicial authorities. The Court has even gone 
beyond the text of a State law to determine 
whether an unjust purpose was concealed. Take, 
for instance, the ordinance of the San Fran- 
cisco supervisors which provided that no laundry 
should be operated except in a building constructed 
of brick or stone. This was plainly discriminatory 
legislation. The Supreme Court decided that 
^'though a law be fair upon its face and impartial 
in its appearance, yet if it is administered by pub- 
lic authority with an evil eye and an unequal hand 
so as to make illegal discrimination between per- 
sons in sim.ilar circumstances," it violates the Con- 
stitution by being a denial of equal rights. Hun- 
dreds of cases of real or fancied partiality on the 
part of a State for one citizen as against another 
have been patiently heard by the Supreme Court, 
including even the question whether osteopaths in 
Texas are persons practicing medicine, and where 
injustice has been proven, the Federal power has 
been interposed and equity secured. There would 
be no necessity for these appeals if the States did 
not occasionally stray from the path of even- 



AND NECESSITY 141 

handed justice and grant favors to their own citi- 
zens which they are unwilling to accord to others. 
Tennessee, for instance, enacted a statute which 
gave to residents of the State priority over non- 
residents in the distribution of the assets of a for- 
eign corporation. The Supreme Court declared 
that these selfish privileges could not be granted 
and through the exercise of the Federal power 
prevented the consummation of an evident wrong. 
It declared invalid the Oklahoma law which for- 
bade foreign corporations from appealing to the 
Federal Courts and held unconstitutional the 
South Dakota statute making railroad corpora- 
tions liable for double damages in certain cases. 
More than this, the Supreme Court has jealously 
guarded the constitutional powers of Congress as 
to the right to regulate commerce and has pre- 
vented any encroachment upon these powers by 
the States.j 

A natural corollary of the Court's position In 
maintaining Federal supremacy over the States 
has been the upholding of Federal legislation. 
The principle prevails that Congress must vio- 
lently disregard a plain provision of the Con- 
stitution before the Supreme Court will under- 
take to set aside the will of the people as expressed 



142 FEDERAL POWER: ITS GROWTH 

through their representatives. Once in a while 
this happens, and when Congress passed a law 
declaring it a criminal offense for any agent or 
officer of an interstate carrier to discharge an 
employee of that carrier because of his member- 
ship in a labor organization, the Court held that 
the statute was an invasion of personal liberty 
and the rights of property. At the same time, 
these adverse decisions are the exceptions rather 
than the rule. On the other hand, it has held 
that the constitutional guarantee of religious free- 
dom was not intended to prohibit legislation 
against polygamy. When it was claimed that the 
Federal power could not keep lottery advertise- 
ments out of the newspapers because such restric- 
tion abridged the liberty of the press, the Court 
decided that the law was valid. The constitu- 
tionality of the Legal Tender Acts was sustained 
as being the proper means of carrying into execu- 
tion the legitimate powers of the government. 

The Court's belief in the power of the Federal 
government over corporations is shown in the 
numerous decisions sustaining the Sherman Anti- 
Trust Law. Notwithstanding the fact that it read 
the word "reasonable'' into the statute, it has dis- 
solved the Sugar Trust, the Standard Oil Trust, 



AND NECESSITY 143 

the Tobacco Trust, and other gigantic combina- 
tions. It over-ruled the consolidation of the 
Northern Pacific and Great Northern railroads, 
known as the Northern Securities Company, and 
compelled the Union Pacific railroad to surrender 
the stock of the Southern Pacific railroad which 
It had acquired. In at least four important cases, 
including the famous litigation against the Dan- 
bury Hatters' Union, it interposed the Federal 
power against aggrieved labor organizations. In 
the Trans-Missouri Freight Association case It 
applied the Sherman Law to railroad corporations 
in order to protect the people; and In all of the 
other cases which have engaged Its attention it 
over-ruled contentions which shrewd lawyers 
brought forward to prevent the law from being 
operative against conspiracies In restraint of trade. 
In the same broad manner It has dealt with the law 
to regulate commerce, under which the Interstate 
Commerce Commission was created, and has made 
the railroads subservient to Federal authority. 
It has sustained that Commission whenever pos- 
sible. It has even gone so far as to decide, 
In the Chicago Junction railway case, that serv- 
ice performed entirely within a State Is still sub- 
ject to the provisions of Federal legislation If It 



144 FEDERAL POWER: ITS GROWTH 

is a part of interstate commerce, and has de- 
clared that since the passage of the Hepburn Act 
it is beyond the power of a State to regulate even 
the delivery of cars for interstate shipments. It 
has prevented the courts from setting aside, under 
the guise of exerting judicial power, certain orders 
of the Interstate Commerce Commission, and has 
sustained the Act which forbids interstate carriers 
from transporting articles or commodities in which 
they had a legal ownership. It sustained the 
Hours of Service Act upon the ground that each 
over-worked employee presents toward the pub- 
lic a distinct source of danger. Its decision up- 
holding the law against railroad rebates abolished 
that evil for all time, while the verdict of legality 
which it gave to the corporation income tax law 
of 1 9 13 enabled the government instantly to add 
$30,000,000 annually to the Federal treasury. 
\/ Not only has the Supreme Court thus given the 
force of judicial sanction to Federal laws which 
increase Federal power but it has, in more cases 
than one, opened wide the door of refuge in a 
Federal court. It has declared, in the case of 
the Union Pacific Railroad vs. Myers, that "it is 
sufficient for the jurisdiction of the United States 
if the suit involves necessarily a question depend- 



AND NECESSITY 145 

ing upon the Constitution, laws and treaties of 
the United States." In another case it is asserted 
that the fact that a party to an action is a cor- 
poration created by the laws of the United States 
makes the question a Federal one for the purpose 
of jurisdiction by a circuit court. Still further, in 
the case of Nashville vs. Cooper, it was held that 
*'it Is no objection to the jurisdiction of the Fed- 
eral courts that questions are Involved which are 
not all of a Federal character. If one of the lat- 
ter exists," It was added, "the court, having as- 
sumed jurisdiction, will proceed to deci4e every 
question In the case." Having expressed these and 
kindred views, it Is easy to understand how the 
Supreme Court promptly brushed aside the con- 
tention that the Federal laws which authorized 
Federal officials to make rules and regulations 
were unconstitutional In that they Invested the 
executive branch of the government with legisla- 
tive or judicial functions. This was the argu- 
ment made against the orders of the Interstate 
Commerce Commission; against the -regulations 
prescribed by the Commissioner of Internal Rev- 
enue in connection with the marks and brands 
upon packages of oleomargarine; against the 
power delegated to the Secretary of the Treasury 



146 FEDERAL POWER: ITS GROWTH 

to establish standards of tea ; against the authority 
given to the Secretary of War to determine 
whether a bridge is an*unreasonable obstruction to 
navigation; against the power lodged with the 
Secretary of Agriculture making criminal all vio- 
lations of the rules and regulations promulgated 
by him for the control of forest reservations; 
and, most important of all, when it was claimed 
to be an absolutely unwarranted delegation of 
legislative power to the Federal executive to au- 
thorize the President, in the Tariff Act of October 
I, 1890, to suspend upon a given contingency the 
provisions of an act relating to the free importa- 
tion of certain articles. 

All of these contentions the Supreme Court 
over-ruled, asserting that Congress may, in Its 
discretion, employ any appropriate means not for- 
bidden by the Constitution to carry into effect 
and accomplish the objects of a power given to 
it by the Constitution. In other words, it is now 
a well-established principle that if Congress seeks 
to attain certain necessary results, the employ- 
ment of delegated power to secure those results 
is perfectly justifiable. If the Court had held 
otherwise the work of the Federal legislature 
would have been tedious and intricate. As it 



AND NECESSITY IV! 

Is, upon the strength of these decisions, it is only 
necessary for Congress to determine, on behalf 
of the people, that certain things must be done 
and then authorize some Federal agent to devise 
the details by which the law can be made effec- 
tive. It must be admitted, however, that the line 
of demarcation between the legislative and the 
executive function almost disappears when com- 
prehensive rules and regulations, which have the 
force of law, are promulgated by the official head 
of a Federal department. 

It must not be understood, however, 4:hat the 
Supreme Court in thus vitalizing Federal control, 
has entirely disregarded the State as an entity. 
In the Minnesota and Missouri railroad rate cases 
it admitted the right of a State railroad commis- 
sion to fix maximum intrastate rates, although It 
reserved the authority to determine whether these 
rates were reasonable or confiscatory. It has 
uniformly held that the first clause of the seventh 
amendment to the Constitution in regard to the 
right of trial by jury relates only to Federal courts 
and that the States are left to regulate trials In 
their own courts. It regards the first ten amend- 
ments to the Constitution as being limitations ex- 
clusively upon Federal power. It also admits 



148 FEDERAL POWER: ITS GROWTH 

that "the State has undoubtedly the power by ap- 
propriate legislation to protect the public morals, 
the public health and the public safety," the only 
restriction being that It must afford every person 
the equal protection of its laws. It also leaves 
to State constitutions and State laws the protec- 
tion of property from unjust or oppressive local 
taxation. Regarding the recognition of the police 
powers of the State, it has held that these powers 
may be exercised when they "do not Interfere with 
the powers or Constitution of the General Gov- 
ernment." The Intimation of reserved Federal 
powers In all the decisions relating to the police 
powers of the States Is significant, i^lready, In 
the settlement of social problems, Federal laws 
are trenching closely upon the police powers of 
the State ; and In the near future, when these enact- 
ments are brought before the Supreme Court, that 
tribunal will felicitate Itself upon the foresight 
which led It to suggest that even upon the police 
powers of the State there are constitutional limita- 
tions. 

It is impossible, within the compass of a single 
chapter, to more fully discuss the Federallstic 
trend of the decisions of the Supreme Court. 
Enough has been given, however, to demonstrate 



AND NECESSITY 149 

that the members of that great tribunal are thor- 
oughly imbued with the wisdom and importance of 
strengthening the arm of the Federal govern- 
ment. Adopting the theory of Marshall that the 
Constitution was ordained and established by the 
people of the United States for themselves, for 
their own government, and not for the govern- 
ment of the individual States, they have found in 
that Constitution ample justification for every step 
which the people have taken toward investing the 
Federal government with additional power. 



150 FEDERAL POWER: ITS GROWTH 



Chapter X 

THE POWER OF THE PRESIDENT 

THE growth of the Federal power has been 
due to the representatives of the people. 
The embodiment of that power Is the President 
of the United States. This could not be other- 
wise. Power is ineffective unless exercised through 
executive agency; and so, more and more, the 
authority which has been conferred upon the Fed- 
eral Government has carried with it an increase 
of power for the head of that government. 

It must be borne In mind that no President 
can escape the atmosphere of Federalism with 
which he Is surrounded. His position compels 
a nation-wide point of view. Senators and Rep- 
resentatives, no matter how broad-minded and 
patriotic they may be, are likely to be concerned 
with matters that virtually affect their especial 
States or districts. The President, on the other 
hand, being responsible for the destiny of the 
nation as a whole, and being dependent politi- 



AND NECESSITY 151 

cally upon the commendation of all the people, 
cannot limit the sphere of his activities to the nar- 
row confines of a State. Every President has, by 
the very circumstance of his position, become an 
upholder of the doctrine of Federalism. Even 
Thomas Jefferson became nationalized, so to 
speak, after his election to the presidency. In re- 
cent years an immense amount of responsibility 
has been placed upon the President; and, more 
than once. Presidents have used the prestige and 
power of their position to accomplish the enact- 
ment into law of policies which they oersonally 
deemed of benefit to the people of the United 
States. 

Examples of this character have been especially 
frequent during the last two decades. When, for 
instance, President Cleveland came into power on 
March 4, 1893, he found upon the statute books 
a law authorizing the purchase of 4,500,000 
ounces of silver each month. Whether the opera- 
tion of this act was responsible for the financial 
troubles then beginning to affect the country was, 
In the public mind, still an open question; but in 
the judgment of the President there was no doubt 
whatever. In the message submitted by him to 
Congress at the beginning of the special session 



152 FEDERAL POWER: ITS GROWTH 

which he convened, he laid all the blame at the 
door of the statute and demanded its repeal. He 
did not confine his effort to the constitutional limi- 
tation of communicating his views to Congress, 
but brought personal pressure to bear upon the 
legislative branch of the government. Even now 
one can recall how the emissaries of the Presi- 
dent thronged the corridors of the capitol; how 
strange and remarkable conversions were wrought 
through influences which emanated from the White 
House and which it was not politic to withstand. 
When the bill repealing the silver-purchasing law 
went to the Senate it did not command a majority 
of that body ; but during the ensuing three months 
of acrimonious debate, the power of the President 
was exerted to such an extent as to win to the 
support of the measure the votes needed to over- 
come the deficiency. No one who is at all familiar 
with the inner history of that memorable and most 
dramatic struggle will dispute these statements. 

In the McKinley administration the power of 
the President turned the wavering scale in favor of 
the ratification of the treaty of peace with Spain, 
wherein it was proposed to pay $20,000,000 for 
the acquisition of the Philippines, although that 
territory had already been obtained through con- 



AND NECESSITY 153 

quest. President Roosevelt successfully exerted 
tremendous pressure upon Congress to secure the 
enactment of the law widely extending the powers 
of the Interstate Commerce Commission, the 
Porto Rican tariff law and many other measures. 
Nothing less than the power of the President 
could have secured the passage, during President 
Taft's administration, of the law concerning reci- 
procity with Canada. And since President Wilson 
has been In the White House there has been a 
constant exhibition of the power of the President 
over Congress. In the preparation of the tariff 
bill he demanded that his own views be followed, 
not only as to the principles but as to the very 
details of the proposed law. When he Insisted 
that It was necessary to enact a law reforming 
the currency system, Congress remained In Wash- 
ington during the long, hot summer months, in 
obedience to his will, while the spectacle was 
afforded of Senators and Representatives being 
summoned to the White House, to receive, even 
at midnight conferences, the executive direction. 
Another striking instance was the enactment of 
the law repealing the exemption of American 
coastwise vessels from the payment of Panama 
canal tolls. In the face of well-founded oppo- 



154 FEDERAL POWER: ITS GROWTH 

sitlon, President Wilson demanded of Congress 
that the repeal should be effected, and Congress 
obeyed. There has hardly been an instance dur- 
ing the past twenty years wherein any President 
has been defeated in any effort vigorously prose- 
cuted by him to secure the enactment of legislation 
upon which he had deliberately determined. 

It is not difficult to discover the source of the 
executive power. It lies very largely in the dis- 
tribution of patronage. A golden stream flows 
through the White House to the remotest comer 
of the country. It springs from the national 
treasury. Under present conditions, any Presi- 
dent of the United States has the power to divert 
this stream where and whither he will — into the 
pockets, occasionally, of his personal friends, but 
invariably to the financial benefit of his political 
supporters. If money is the lever that rules the 
world any President can dispense it with a lar- 
gess that is startling. He can stand beside the 
public treasury, with one arm plunged deep into its 
vaults, while the other distributes the golden store 
to a horde of office-holders. Postmasters, collec- 
tors of customs, revenue officials, marshals, attor- 
neys, consuls, foreign ministers — all these and 
more are recipients of bounty through presidential 



AND NECESSITY 155 

favor. The only check is the approval of the 
United States Senate on appointments; and the 
members of that body, knowing that their con- 
stituents are drinking deeply of the Pactolian 
stream, rarely interpose an objection. Ten years 
ago official figures obtained from the Government 
departments, not including the War and Navy De- 
partments, showed that the President directly con- 
trolled appointments which paid salaries amount- 
ing to approximately $20,000,000 a year. Since 
that time the number of Federal offices has been 
so greatly increased, as a natural accornpaniment 
of the growth of Federal power, that the total is 
now appalling in its magnitude. Statistics com- 
piled by the Civil Service Commission show that 
on June 30, 19 17, the number of officers and em- 
ployees in the Federal civil service was 517,805. 
Excluding employees who are within the scope of 
competitive examination, or who are laborers en- 
gaged in Panama Canal work and elsewhere, as 
well as mail contractors, there were, on the date 
mentioned, 125,129 persons who came within the 
presidential power of appointment or were di- 
rectly or indirectly named by heads of depart- 
ments selected by the President. The annual sal- 
aries paid to these appointed employees would 



156 FEDERAL POWER: ITS GROWTH 

certainly aggregate a quarter of a billion dol- 
lars. The spoils of office which figured so largely 
in Andrew Jackson's administration were as a 
tiny rivulet compared with the mighty patronage 
of a President at the present time. The hand 
which controls this enormous output of national 
wealth is a hand of power. 

Presidential pressure upon Congress Is toler- 
ated upon the theory that the end justifies the 
means, because in practically every instance where 
legislation has been forced through Congress 
the President was apparently actuated by sincere 
motives. The argument Is not sound. If the 
presidential power can be exercised for good It 
may also be made an agency for evil. The fact 
is that It ought not to be exerted at all. Under 
the Constitution the Government Is divided Into 
three branches, the legislative, executive and 
judicial. They are distinct and separate In their 
functions and in their relations to each other. It 
never was intended that the executive should 
trench upon the legislative, other than through the 
occasional presentation of a message upon the 
state of the nation. It Is one of the evils of the 
growth of Federal power that the President has 
been afforded an opportunity for conferring fa- 



AND NECESSITY 157 

vors upon Senators and Representatives in the 
matter of appointments to a degree which makes 
the situation serious. 

With the knowledge that the attitude of an ad- 
ministration toward his candidacy may make him 
or break him, few legislators dare to be persona 
non grata with a President of their political faith. 
Their sphere of usefulness in the preparation of 
laws may not be interfered with, but they are po- 
litically weakened if they are deprived of presi- 
dential recognition and support. Perhaps we shall 
some day have a law which will forbid presiden- 
tial influence in elections. In the meantime, the 
politicians will continue to follow the line of least 
resistance ; and it is always easier for them to plead 
party regularity and justify adherence to a Presi- 
dent than it is to explain opposition. Senators 
and Representatives also align themselves with 
an administration of their own party because they 
know that if the President is sustained by the^ 
country, their own retention in office is more cer- 
tainly assured; while if the President is repudi- 
ated, they will go down with their party, no mat- 
ter whether they were with the President or 
against him. When it comes to dealing with the 
people, however, the presidential power is not 



158 FEDERAL POWER: ITS GROWTH 

always effective. The power of patronage re- 
nominated President Harrison in 1892 and Presi- 
dent Taft in 19 12, but both were defeated at the 
polls. It is a reassuring fact that no President 
has yet been able to build up an office-holding oli- 
garchy that will absolutely insure his reelection; 
but it is also a fact that through the distribution of 
Federal patronage an influence can be exerted 
over Congress which, in the hands of an unscrupu- 
lous man, might become a menace to the country. 
There is another reason why the power of the 
President has so greatly increased. Congress is 
apparently quite willing to place the burden of 
government upon his shoulders. This was evident 
before the outbreak of the war; and since war 
has been declared nearly every legislative act of 
importance has added to the President's duties 
and responsibilities. Some of these measures 
have been of the President's own seeking; but all 
of them have added so tremendously to his author- 
ity that he is to-day invested with more power than 
any other ruler in the world. In the food and fuel 
administration bill, for instance, he is given prac- 
tically absolute control over tbe transportation 
and distribution of food-stuffs; the power to fix 
prices; to fix the standards and grades of food- 



AND NECESSITY 159 

stuffs ; to commandeer supplies and even take over 
plants, either for the armed forces or for the pub- 
lic good; to license the importation, exportation, 
manufacture, storage and distribution of the neces- 
saries of life; to prevent waste and hoarding; to 
purchase, store and sell necessaries at reasonable 
prices; and to prohibit the use of foods, fruits, 
food materials or feeds in the production of dis- 
tilled liquors, except for governmental, industrial 
or medicinal purposes. He has been given the 
power to commandeer ships and ship-construction 
plants ; to declare embargoes ; to determine prior- 
ity of shipments of commodities by any common 
carriers; to affect our international relations and 
the conduct of the war by loaning $3,000,000,000 
to our Allies in such manner as his judgment may 
dictate; to control absolutely the production of 
aeroplanes, even to the extent of securing land 
and buildings by any means he sees fit to use ; and, 
omitting a thousand and one other Investments of 
authority, to determine who shall and who shall 
not be exempted from the operation of the Con- 
scription Law. Is it any wonder that with so 
much delegated power he should object, as he did 
in his letter to Representative A. F. Lever, of 
South Carolina, on July 23, 19 17, to the creation 



160 FEDERAL POWER: ITS GROWTH 

of a Committee of Congressional Control on the 
ground that such supervision would render prac- 
tically impossible "my task of conducting the 
war" ? 

We can accept with more or less equanimity, on 
account of war conditions, the announcement in 
the New York Times, on the eve of the assem- 
bling of the second session of the Sixty-fifth Con- 
gress, that "not in years has there been a session 
of Congress in which the legislative activity de- 
pended so entirely upon the initiative of the Ex- 
ecutive" and that "leaders on both sides of the 
capitol say that they will be guided in their legis- 
lative work by the wishes of the President." The 
Washington correspondent of the New York 
World asserted on Monday, December 3, 19 17, 
that Congress would "leave everything to 'The 
Man in the White House,' " and added that "his 
authority is absolute, his wish equal to a com- 
mand." It is not a healthy symptom when we, as 
a people, are urged to "stand by the President," 
as if the other branches of our tripartite govern- 
ment were of no concern whatever . This reminds 
one of the English motto, "For God, for King, 
for Country," the ruler being placed ahead of 
the nation. The time is coming, however, when 



AND NECESSITY 161^ 

the war will be over, and when the President can- 
not have the excuse of abnormal conditions for 
exercising an unprecedented degree of autocratic 
power. Judging the future by the past, we will 
find that no President will willingly surrender any 
degree of authority which he has enjoyed. None 
the less must we face squarely the constantly en- 
larging executive power. 

One method of divorcing the executive from the 
distribution of patronage was presented in a speech 
delivered in the United States Senate some years 
ago by Senator Jonathan Bourne, Jr., of^Oregon, 
who proposed a constitutional amendment trans- 
ferring the presidential power of nomination to a 
permanent non-partisan commission to be created, 
with the suggestion that, in the meantime, the 
responsibility for selection should be placed upon 
Senators and Representatives. Mr. Bourne ex- 
pressed the hope that the crystallization of public 
opinion against the misuse of power by the Presi- 
dent would force presidential candidates in all 
parties to announce, prior to their nomination or 
election, that if elected they would place upon 
Senators and Representatives the responsibility 
for making selections of all Federal appointees in 
their respective States. Experience has demon- 



162 FEDERAL POWER: ITS GROWTH 

strated, however, that these suggestions are neither 
wise nor practical. The plan of a nonpartisan 
commission to make appointments was unsuccess- 
fully experimented with in New York State from 
1780 to 1820. The investment of Senators and 
Representatives with the power of selection would 
result in a diffused responsibility which would 
plague the country. Legislative designation has 
been tried and abandoned in nearly all the States 
in which appointments by the legislature once ob- 
tained. 

Even If there unfortunately should be a dis- 
position to place upon national legislators the re- 
sponsibility of naming Federal office-holders, we 
are confronted by the fact that neither Presidents 
nor would-be Presidents will relinquish, or promise 
to relinquish, the machinery of control which now 
exists in the distribution of patronage. That 
they should be willing to do so is true enough; 
but what they ought to do and what they will agree 
to do, are two very different propositions. They 
will continue to use the power of patronage to 
influence those who are disposed to be recalcitrant; 
not always, of course, in the unconcealed fashion 
of President Taft. There is nothing more re- 
markable in the whole realm of political corre- 



AND NECESSITY 163 

spondence than the letter which was made public 
on September 15, 19 10, and signed by Charles D. 
Norton, then Secretary to President Taft. This 
communication, addressed to a Republican party 
leader in Iowa whose name was not disclosed, 
frankly stated that *'while certain legislation pend- 
ing in Congress was opposed by certain Republi- 
cans, the President felt it to be his duty to his party 
and to the country to withhold Federal patronage 
from certain Senators and Congressmen who 
seemed to be in opposition to the administration's 
efforts to carry out the promises of the pjrty plat- 
form." Here, then, was a direct admission that 
the President had so manipulated the distribution 
of Federal offices as to punish those who were not 
in accord with his policies; and although it was 
added that this discrimination had ceased, the fact 
that it had been practiced was unblushingly con- 
fessed. Other Presidents, with more political 
shrewdness and less innate honesty than Presi- 
dent Taft, have never yet taken the people into 
their confidence to the same extent, although it is 
no matter of doubt that they have been equally 
reprehensible. 

The power of the President to shape national 
policies is not confined to his control over Con- 



164? FEDERAL POWER: ITS GROWTH 

gress. Five of the nine Associate Justices now 
serving upon the bench of the Supreme Court of 
the United States were appointed by President 
Taft, who also nominated the present Chief Jus- 
tice; and it is safe to say that Mr. Taft was 
thoroughly conversant with the views held by 
each appointee upon constitutional and other ques- 
tions before he submitted their names to the 
Senate, and that each of them reflected his own 
opinions. The same assertion applies to the ap- 
pointment of Mr. Brandeis and Mr. Clark by 
President Wilson. The policy of the govern- 
ment toward the railroads was also affected in the 
past by the personnel of the Interstate Commerce 
Commission. Recently there was a prolonged con- 
test over the confirmation of an appointee to this 
Commission, on the ground that his acts and utter- 
ances betrayed too plainly his attitude toward the 
railroads ; but the President insisted upon favor- 
able action and was victorious. The President 
can also put men in his cabinet as the first step 
toward effecting policies which do not require 
legislative sanction, but which may materially af- 
fect the nation or the perpetuation of his party in 
power. There are, in fact, so many ways in 
which the power of the President can be and is 



AND NECESSITY 165 

exercised, apart from insisting that Congress shall 
do his will, that unless that power is safeguarded 
more carefully than at present, the door of danger 
is opened wide. 



166 FEDERAL POWER: ITS GROWTH 



Chapter XI 

FEDERAL POWER AS A POLITICAL ISSUE 

THE political system which has developed in 
the United States is one of party govern- 
ment. It is important, therefore, that each party 
should clearly and carefully define its position in 
order that the people may be able to decide in- 
telligently which organization to support by their 
votes. There have been innumerable issues since 
the election of our first President, but none pre- 
sents a more interesting subject for study and 
analysis than the question of the limitation and 
extent of Federal power. This is especially true 
of the early days of the Republic when the accept- 
ance of Federal power was not as universal as it 
is to-day. 

It is a significant fact that the first words of 
the first platform adopted by the Democratic 
party set forth a principle to which that party 
clung tenaciously for many years. "Resolved," 
said this declaration, "that the FederaF govern- 



AND NECESSITY 167 

ment is one of limited powers." This was in 
1840. For nearly half a century the Democrats 
had been in power. Jefferson, Madison, Monroe, 
Jackson and Van Buren had been elected, and 
even though the term of John Quincy Adams in- 
tervened, the fact is that he received a much 
smaller popular vote than Jackson and became 
President only because the election was thrown 
into the House of Representatives. All these 
men had been upholders of the rights of the States 
and were strict constructionists of the Constitu- 
tion and it was but natural that when it%became 
necessary to present party principles in concrete 
form the ideas which had led to Democratic suc- 
cess should be definitely expressed. We find, 
therefore, that not only was it resolved that the 
Federal government was one of limited powers 
but that the platform fairly bristled with a series 
of constitutional ^'don'ts" designed to restrict the 
operations of the general government. Among 
other things, it was declared that there could not 
be, and should not be, a Federal system of internal 
improvements — a position upon which the party 
in later years absolutely reversed itself. 

With this issue thus emphasized, the party 
went down to defeat, William Henry Harrison 



168 FEDERAL POWER: ITS GROWTH 

being elected. It is not enough to say that this 
was not a case of cause and effect nor that Harri- 
son was elected because he was a more popular 
candidate than Van Buren. The fact is, and it 
can be proven, that when the Democratic party 
decided to make an issue before the people on 
the question of halting the growth of a strong, 
centralized government, it invited the long period 
of successive defeats which followed. Of course, 
it could not act otherwise. Opposition to the con- 
tinuance of slavery had already become manifest 
and there was an increasing tendency to insist that 
human bondage was an evil which the Federal 
government should exterminate. The slave-hold- 
ers in the South, the majority of whom were 
Democrats, and who controlled the political 
destinies of Senators and Representatives from 
their widely extended and important section, in- 
sisted that slavery was purely a State matter 
and that each State must be left to solve the 
problem in its own way. In 1852 the Democratic 
platform unequivocally asserted that Congress 
had no right to interfere with slavery. It went 
even further. It pledged the Democratic party 
to faithfully abide by and uphold the principles 
laid down in the Kentucky and Virginia resolu- 



AND NECESSITY 169 

tions of 1792 and 1798. These resolutions, as 
has been previously shown, breathed defiance of 
State government to national government; and 
when the Democratic party adopted these prin- 
ciples "as constituting one of the main founda- 
tions of its political creed" and "resolved to carry 
them out in their obvious meaning and import," 
it again drew a clear line of demarcation which 
could not be misinterpreted or misunderstood. 
Its leaders, suffering political strabismus on ac- 
count of their devotion to slavery, could not see 
that their position was untenable and ev^n fatal. 
It was all the more unfortunate for them that 
their position rested upon a condition repugnant 
to the American love of freedom. Subsequent 
events have proved, however, that their doctrine 
would have gone down to defeat even if it had 
rested upon some other foundation. 

The Republicans were only too willing to fight 
out the question of national supremacy over the 
slavery issue. From the very beginning they were 
the political successors of Hamilton and all the 
other ultra-Federalists and the struggle was alto- 
gether to their liking. Even before the Civil War 
the Whigs were declaring for an enlargement of 
Federal power — the construction of internal im- 



170 FEDERAL POWER: ITS GROWTH 

provements and the building of a trans-continental 
railroad through government aid. After the war 
the Republicans naturally went farther. They de- 
clared in 1872 that the United States is a nation 
and not a league; and twelve years later expressed 
the same idea more fully in these words: "The 
people of the United States in their organized ca- 
pacity, constitute a nation and not an American 
federacy of states." The Democrats, in the mean- 
time, so thoroughly were they still obsessed with 
the ante-war doctrines, held to their old position. 
Even as late as 1880 they were declaring opposi- 
tion to centralization and to "that dangerous spirit 
of encroachment which tends to consolidate the 
powers of all the departments in one and thus to 
create, whatever be the form of government, a 
real despotism." 

It was not until 1884 that a light broke upon 
the Democratic vision. The party had long been 
out of power. Its members had seen the Republi- 
cans forging ahead, holding control because they 
were constantly finding new avenues for the exer- 
cise of Federal power, and it seemed to finally 
dawn upon them that perhaps they had failed to 
sense accurately the American spirit. In their 
platform for 1884 a significant sentence occurs. 



AND NECESSITY 171 

No longer do they reiterate with futile frequency 
the idea that the Federal government is one of lim- 
ited powers. On the contrary, we now learn that 
"as the nation grows older, new issues are born of 
time and progress and old issues perish." There 
is even for the first time an admission of "the 
supremacy of the Federal government," even 
though the phrase be qualified with reference to 
"the reserved rights of the States" and "the limits 
of the Constitution." A remarkable result fol- 
lowed. The Democratic party, for the first time 
in a quarter of a century, elected its President. 
It is far more reasonable to believe that the Demo- 
crats were victorious because they frankly con- 
fessed the errors of the past and entered upon 
a path in which nation-loving citizens could join 
them than to assert that a single remark by a pub- 
lic speaker about rum, Romanism and rebellion 
occasioned Blaine's defeat. 

With a fatuity that seems inexplicable the 
Democratic party failed to hold the advanced 
position which it had taken and in 1888 again de- 
clared its devotion to a strict construction of the 
Constitution, with consequent defeat. In 1892 it 
attempted to carry water on both shoulders. In 
one paragraph of its platform it deplored that 



172 FEDERAL POWER: ITS GROWTH 

"the tendency to centralize all power at the Fed- 
eral capital has become a menace to the reserved 
rights of the States, that strikes at the very roots 
of our government under the Constitution as 
framed by the fathers of the Republic." This 
declaration lost whatever force an obsolete doc- 
trine might have had when it was placed along- 
side other utterances in the same platform. While 
decrying centralized power in one breath, the 
platform almost immediately thereafter favored 
^'legislation by Congress and State legislatures to 
protect the lives and the limbs of railway em- 
ployees and those of other hazardous transporta- 
tion companies." More than this, the platform 
declared that "the Federal government shall care 
for and improve the Mississippi river and other 
great waterways of the Republic, so as to secure 
for the interior States easy and cheap transporta- 
tion to tide water. When any waterway of the 
republic is of sufficient importance to demand the 
aid of the government," the platform continued, 
"such aid should be extended with a definite plan 
of continuous work until permanent improvement 
is secured." The changes which the years had 
wrought in the evolution of Federal power are 
made wonderfully apparent in the paragraph just 



AND NECESSITY 173 

quoted. The Idea that the Federal government 
was constitutionally helpless to enter within a 
State boundary, even to conduct a public improve- 
ment^ — an idea emphatically asserted as a party 
principle in 1840 — had in 1892 passed into obliv- 
ion. Upon this platform of 1892 the Democrats 
won. 

Once again, in 1896, the Democratic party 
harked back to Its old love and declared that it 
had "resisted the tendency of selfish interests to 
the centralization of governmental power and 
steadfastly maintained the Integrity of th^ dual 
system of government established by the founders 
of this republic of republics." There was also a 
touch of pride in the declaration that "under its 
guidance and teachings the great principle of local 
self-government has found Its best expression In 
the maintenance of the rights of the States and In 
Its assertion of the necessity of confining the gen- 
eral government to the exercise of the powers 
granted by the Constitution of the United States.'* 

On the other hand, the Republican party broad- 
ened its growing catalogue of Federal activities 
and won the election. In the following campaign 
of 1900 the Democrats, still failing to real- 
ize that their fight to limit Federal powers had 



r 



174 FEDERAL POWER: ITS GROWTH 

been a hopeless one, undertook the equally impos- 
sible task of minimizing the international power 
which had been thrust upon the United States as 
the outcome of the war with Spain. "The burn- 
ing issue of imperialism, growing out of the 
Spanish War," declared the platform, "involves 
the very existence of the Republic and the de- 
struction of our free institutions. We regard it 
as the paramount issue of the campaign." The 
issue was repudiated by the people. They were 
more and more learning and loving national great- 
ness. The process of evolution through which 
the American people had been advancing for more 
than a century failed to make its impress upon 
the Democratic mind and the party went down 
again to defeat. The fact is that the Democratic 
party placed a serious handicap upon itself when it 
declared that the Federal government was one of 
limited powers. The period between i860 and 
19 1 2 is more than half a century. During all that 
time the Democrats were in complete possession of 
both the executive and legislative branches of the 
government for two years only. Even in 1 9 1 2 the 
combined Republican vote was over one million 
in excess of the Democratic vote. In the election 
of 19 1 6 the Democrats had so thoroughly begun 



AND NECESSITY 175 

to invoke and utilize Federal power that the ques- 
tion of dual sovereignty was no longer an issue. 

Nothing could better illustrate popular acqui- 
escence in the exercise of the largest possible de- 
gree of Federal power than the case of Theodore 
Roosevelt. When he sought election in 1904, as 
the successor of the martyred McKinley, the 
Democratic party indirectly denounced him by 
favoring "the nomination and election of a Presi- 
dent imbued with the principles of the Constitu- 
tion, who will set his face against executive usurpa- 
tion of legislative and judicial functions,^ whether 
that usurpation be veiled under the guise of ex- 
ecutive construction of existing laws or whether 
it take refuge in the tyrant's plea of necessity or 
superior wisdom." The denunciation was in vain, 
even though every one knew that in the matter of 
Federal control he had gone further than the 
most daring of his predecessors. It is true that 
he had expressed his willingness to have the States 
work out, if they could, the reforms which he re- 
garded as essential to the national welfare, *'but," 
he added significantly, *'if the States do not do as 
they should, there will be no choice but for the 
National government to interfere." He gave the 
States their opportunity when he invited the gov- 



176 FEDERAL POWER: ITS GROWTH 

ernors to a conference at the White House and 
listened while they gravely discussed the necessity 
for uniform legislation along progressive lines. 
But when the conference did not produce material 
results, as nobody expected it would, and when 
the organization then effected subsided into a per- 
functory existence, Mr. Roosevelt went ahead 
and upon his own initiative created various 
Federal Commissions to inquire into subjects 
which might properly be considered as belonging 
exclusively to the jurisdiction of the States. In 
due course of time he again became a candidate 
for the Presidency; and although it was evident 
that he entertained positive ideas of executive 
power, as shown by his action in the Tennessee 
Coal and Iron Company case; and although the 
third-term question entered into his candidacy, 
over 4,000,000 American citizens cast their votes 
for him. So thoroughly did he represent the idea 
that the Federal power should be exerted to the 
last degree in the effort to ameliorate human con- 
ditions that the voters apparently did not care 
whether he had served two terms or twenty. 
There is no other reason to account for the very 
large degree of popular support accorded him 
except upon the theory that he was the most satis^ 



AND NECESSITY ITT 

factory personification of the Federal authority 
which the people now accepted with implicit faith. 
The relation of Federal power to politics is 
certain to be complicated in the future by the fact 
that the Federalism of to-day is carrying us stead- 
ily toward socialism — not the anarchistic, revolu- 
tionary, radical socialism that disregards the in- 
herent rights of property and demands equality at 
the sacrifice of individuality, but the State social- 
ism which employs the power of the Government 
to accomplish those desirable and universal results 
which are not otherwise attainable. The merging 
of Federalism into Socialism is already apparent. 
Certain it is that the growth of Federalism — the 
steadily increasing demand for Federal inspection, 
regulation and control — has been coincident to 
and parallel with the spread of the Sociahstic sen- 
timent throughout the world. It is State social- 
ism, pure and simple, for the Federal govern- 
ment to investigate causes of infant mortality; to 
inspect the meats which the people eat and guar- 
antee the purity of the foods and drugs which they 
buy; to assist the planter in baling his cotton or 
the farmer in shipping and selling his grain; and 
to provide employment through the operation of 
a Federal bureau. Federal legislation to-day is 



178 FEDERAL POWER: ITS GROWTH 

fairly saturated with the germs of Socialism, even 
though the term is not used, but, sooner or later, 
the nation will be brought face to face with a de- 
mand for laws in which there will be no disguise. 
If it were not for the fact that the Socialist party, 
as at present led and constituted, is repellent be- 
cause of Its lack of patriotism and is guilty of 
arraying class against class, it would have a much 
larger following than It enjoys. Note, however, 
that while the Socialists, as a political organiza- 
tion, did not place a Presidential candidate In the 
field until 1904, they were able to give Eugene V. 
Debs nearly 1,000,000 votes in 19 12. There 
have been periods during the past five years when 
more than 1,000 Socialists held elective office In 
the United States and the number is constantly 
increasing. In more than one city to-day the So- 
cialists are almost equaling In numbers the voters 
of the long-estabHshed parties and to prevent their 
further success at the polls it is seriously proposed 
— and was, in fact, actually practiced recently In 
Chicago, Milwaukee and other cities — ^to combine 
the Republican and Democratic electorate upon a 
non-partisan ticket. 

Impetus will be given to the exercise of Fed- 
eral power In accomplishing great social reforms 



AND NECESSITY 179 

If the agencies seeking these reforms do not bear 
the Socialist label. The leaders of the Progres- 
sive party undoubtedly had this idea in mind when 
they framed in 19 12 a political platform which 
closely paralleled the utterances of the Socialist 
organization. It Included the prevention of in- 
dustrial accidents, occupational diseases, over- 
work, Involuntary unemployment, and other in- 
jurious effects Incident to modern Industry; the 
fixing of minimum safety and health standards for 
the various occupations and the exercise of the 
public authority to maintain such standands; the 
prohibition of child labor; a minimum wage In 
all Industrial occupations; the general prohibition 
of all-night work for women and the establish- 
ment of an eight-hour day for women and young 
persons; the protection of home life against sick- 
ness, Irregular employment and old age by a sys- 
tem of social Insurance; the establishment of a 
strong Federal commission to maintain perma- 
nent active supervision over Industrial corpora- 
tions; the protection of the public against fraudu- 
lent stock issues ; and fully a score of other activi- 
ties of the same character. The political platform 
of the Socialist party did not go further In the 
matter of Industrial legislation, and advanced be- 



180 FEDERAL POWER: ITS GROWTH 

yond the Progressive declaration only In the ad- 
vocacy of collective ownership of public utilities 
and of all privately-owned commercial enterprises. 
As for the collective ownership Idea, It Is a fact 
that there are many men in public life to-day, In all 
of the political parties, who believe that the Fed- 
eral government will eventually own and control 
all of the railroads in the United States. Unques- 
tionably this matter will become a political issue 
to be decided at the polls. 

Very altruistic appear some of the national re- 
forms desired by a large mass of the people but 
altruism is the most effective basis of the appeal 
for unlimited extension of the Federal power. It 
inspires almost every amendment to the Constitu- 
tion now pending before Congress or which has 
been introduced during the last ten years. It is 
also significant that no amendment has proposed 
the enlargement of State powers. On the con- 
trary each aims to invest the Federal government 
with larger jurisdiction. It is the Federal power 
which is to be invoked to suppress the liquor traf- 
fic or regulate marriage and divorce or establish 
uniform hours of labor. The effort to secure a 
constitutional amendment to legalize woman suf- 



AND NECESSITY 181 

frage had its inspiration in the fact that if Con- 
gress would only adopt the amendment, ratifica- 
tion by three-fourths of the States would impose 
the system upon all the other States — a much less 
difficult method of securing the desired result than 
by knocking at the doors of the legislatures of 
the forty-eight States. Nation-wide prohibition 
through the adoption of an amendment to the Fed- 
eral Constitution seems also assured, especially 
since Mr. Bryan has openly avowed his acquies- 
cence in this procedure despite his adherence to 
the doctrine of State rights in the platforms upon 
which he ran in his various presidential campaigns. 
The opponents of prohibition are relying almost 
solely upon the plea that the regulation of the 
liquor traffic is solely within the rights of the 
States. They are leaning upon a broken reed. 

The time has passed when the Democratic 
party, unless it desires to invite certain defeat, 
will return to the ideas which it enunciated in 1840 
and which it so foolishly and fatally reiterated in 
subsequent platforms. The political battles of the 
future will not be fought upon the question of 
limiting Federal powers. Rather will we see the 
political parties vying with each other in sug- 



182 FEDERAL POWER: ITS GROWTH 

gesting how that power can be most largely exer- 
cised for the benefit of the people ; and that party 
which not only promises but performs may be sure 
of a long lease of power. 



AND NECESSITY 183 



Chapter XII 

FEDERAL POWER IN WAR 

IN time of peace the Federal power expanded 
steadily. With the declaration of war against 
Germany on April 6, 19 17, it grew by leaps and 
bounds. 

When a great national crisis is precipitated the 
common cause of victory necessitates prompt and 
decisive action and demands the subordination of 
corporate and individual interest. The conflict 
upon which we have entered concerns the nation 
as a whole and not the States as separate entities. 
The nation, therefore, must be supreme. This is 
a truth so self-evident that the people not only 
expect Federal power to be exerted to the utmost 
but are disappointed if such is not the case. 
Democracy Is not, and cannot be, efficient if all 
Its agencies are not coordinated and directed by 
responsible authority. This has been demon- 
strated by experience ; and its exposition has gone 
so far that the war may bring about a change in 



1845 FEDERAL POWER: ITS GROWTH 

our Institutions as definite as the new international 
boundaries which will mark the conclusion of 
peace. In other words, it is not impossible that 
the trend which has been noted as constantly de- 
veloping through the centuries will find us com- 
pelled to accept the practically universal applica- 
tion of Federal power instead of merely recording 
isolated instances as in the past. 

In analyzing the reasons for the situation In 
which the nation now finds itself, we discover 
three factors of compelling importance. The 
first, of course, is the necessity of focusing au- 
thority upon the smallest possible point. Divided 
responsibility Is irresponsibility. Realization of 
this fact is fully recognized and Congress has 
imposed upon the President a degree of authority 
which makes him literally the most powerful ruler 
in the world. The President has not sought to 
evade this responsibility. On the other hand, it 
seems to completely accord with his own view. 
War was not declared until he saw fit to recom- 
mend It; and the momentous step having been 
taken, he has proceeded under the theory that his 
leadership is supreme. When Congress has hesi- 
tated to adopt his policies he has appeared before 
it in person to add the force of his presence to the 



AND NECESSITY 185 

expression of his desire; while at other times he 
has summoned Congressional leaders to the White 
House for the sole purpose of emphasizing his 
point of view. These occurrences have excited 
little protest or criticism. Every one has felt that 
in a period of crisis the reins of government 
must not be loosely held. Only by the largest 
exercise of Federal power could results be ob- 
tained and the jurisdiction of the President, as 
the embodiment of that power, has proportion- 
ately enlarged. 

The second factor is the abnormal e^nomic 
condition resulting from the war. Production in 
Europe has been necessarily curtailed through the 
mobilization of millions of men in the various 
countries and those nations which possessed facili- 
ties for safeguarding the transportation of food- 
stuffs and munitions of war across the seas be- 
came eager purchasers of American supplies. The 
very exigency of the situation compelled them to 
procure at any cost those things which were essen- 
tial to their individual and national existence and 
a rise in prices was the natural consequence. This 
led, in turn, to a popular protest which could 
not pass unheeded. At the same time, our Allies 
could not be deprived of the assistance which 



186 FEDERAL POWER: ITS GROWTH 

they so sorely needed. Here was a problem be- 
yond State solution. It could only be successfully 
met by Congress investing the President with au- 
thority to appoint Federal agents who would be 
clothed with the utmost degree of Federal power 
to discipline the profiteers, turn waste into saving, 
prevent hoarding for speculative purposes and to 
protect the people from any and all kinds of im- 
position. Out of this necessity was born the act, 
approved August lo, 19 17, which provides "for 
the national security and defense by encouraging 
the production, conserving the supply, and con- 
trolling the distribution of food products and 
fuel." In the primitive past we relied upon the 
law of supply and demand, the only law with 
which our forefathers were acquainted; but now 
we attempt by the exercise of Federal power "to 
assure an adequate supply and equitable distribu- 
tion, and to facilitate the movement of foods, 
feeds, fuel, including fuel oil and natural gas, and 
fertilizer and fertilizer ingredients, tools, utensils, 
implements, machinery, and equipment required 
for the actual production of food, feeds and fuel." 
The law goes even further, for it proposes "to 
prevent, locally or generally, scarcity, monopoliza- 
tion, hoarding, injurious speculation, manipula- 



AND NECESSITY 187 

tions, and private controls, affecting such supply, 
distribution and movement." 

The word "dictator" would seem to have no 
place in a republic and yet the word is already 
accepted as a part of our national vocabulary. 
We have seen the agents of the Federal Food Ad- 
ministration Bureau entering storage warehouses 
owned by individuals or corporations and seizing 
hoarded food, converting private into public 
property, fixing the maximum price at which 
manufacturers and dealers in foodstuffs can sell 
their goods, and even specifying the weight of 
loaves of bread. We find the strong arm of the 
Government uplifted against any person who re- 
stricts the manufacture, supply or distribution of 
necessaries, or hoards them, or exacts excessive 
prices. Under the law all persons or corpora- 
tions, other than those whose business is less than 
$100,000 per annum, may be compelled to oper- 
ate under a Federal license issued by the Presi- 
dent, and heavy penalties are provided for viola- 
tion of the provisions of the act. The President 
is even authorized to purchase, store, "and sell 
for cash at reasonable prices," wheat, flour, meal, 
beans and potatoes ; and thus we have reached a 
point where the President is by force of law con- 



188 FEDERAL POWER: ITS GROWTH 

verted into a wholesale produce dealer — all for 
the good of the people. Furthermore, "he is au- 
thorized to requisition and take over, for use or 
operation by the government, any factory, pack- 
ing house, oil pipe line, mine or other plant, or 
any part thereof, in or through which any neces- 
saries are or may be manufactured, produced, pre- 
pared or mined, and to operate the same.'' In 
fact, as the provisions of this remarkable law are 
read and re-read, it is difficult to imagine any 
avenue for the exercise of Federal power which 
has been overlooked. 

The authority of the Fuel Administrator is on 
an equal plane with that of the Food Administra- 
tor. As the latter has fixed the price at which the 
farmer shall sell his wheat, so the former has fixed 
the price of coal at the mine and has compelled the 
maximum production, so that there can be no 
false inflation of prices. The law gives him full 
authority so to do; and further, if any producer 
of coal and coke fails, in the opinion of the Presi- 
dent, to conform to the governmental prices or 
regulations, "or to conduct his business efficiently 
under the regulations and control of the President 
aforesaid, or conducts it in a manner prejudicial 
to the public interest," the President is empowered 



AND NECESSITY 189 

to requisition and operate the plant, not, however, 
without allowing just compensation. 

Under the drastic provisions of this law coal 
dealers in the United States must cooperate with 
the Federal Fuel Administration or go out of 
business. This policy was laid down In an ulti- 
matum sent to a Pennsylvanlan firm on the 8th of 
December, 19 17, in which the firm was advised 
that if refusal to cooperate continued, *'the Ad- 
ministration will take steps to have all coal shipped 
to you diverted to local dealers." "It Is not a 
time when dealers can run their own business as 
they see fit," was the brusque and significant mes- 
sage of the Fuel Administrator, and the firm was 
given four hours to accept the dictation of the 
Federal agent or close its doors. Of course. It 
chose the former alternative; and submission by 
all other coal dealers will naturally follow. It 
Is not for them to question whether a college 
president, suddenly placed in the position of Fed- 
eral Fuel Administrator, ought to be regarded as 
the last word In dictating to men who have been 
in the coal business all their lives. It Is not for* 
them to reason why; they are compelled to liter- 
ally do or die. The representatives of the people 
gave power to the President; the President, In 



190 FEDERAL POWER: ITS GROWTH 

turn, delegated the administration of that power 
to a person of his own selection ; and that person, 
administering the law, is supreme. The question 
is, of course. What will be the effect of such abso- 
lute control of private industry upon the public 
mind? It is true that the operation of the statute 
is limited to the period of the war, but if the strug- 
gle should last two, three or five years, we will 
have ample time to observe the effect of the legis- 
lation. Beneficent results can have only one out- 
come. The law will be extended indefinitely. We 
can also depend with reasonable certainty upon 
another alternative. Granting that experience 
demonstrates that some of the provisions are im- 
practical or operate unjustly, it is easy to believe, 
in view of the extent to which the nation had gone 
in time of peace, that Congress will seek to remedy 
these difficulties by amendment rather than aban- 
don altogether the action which has been taken. 

The third factor remains to be considered. Our 
entrance into the war found us without men, muni- 
tions or ships. To secure all these — even if the 
work occupied a year — was an enormous task and 
not to be accomplished without utilizing Federal 
power to the utmost. The men were secured 
through a Federal Conscription Act, under which 



AND NECESSITY 191 

the State militias which had existed for a hun- 
dred years disappeared in a National Army. As 
these State increments were not sufficiently numer- 
ous, additional men had to be secured and this 
was done through Federal process. Never were 
State boundaries so entirely obliterated as in the 
operation of the Selective Draft. In the Civil 
V^ar, men joined the Sixteenth Illinois Regiment 
or the Seventy-first New York Regiment and the 
recognized State title clung to the organization 
throughout the four years of service. The regi- 
ments of the National Army are designated by 
number and the name of the State from^ which 
the men may come is never mentioned. In the 
Civil War, State flags were carried into battle and 
are still preserved with tender regard in museums 
devoted to relics of that great conflict. To-day 
there is but one emblem — ^the National flag. 

Federal power was invoked to compel men to 
serve in the army because in no other way could 
the requisite military force have been obtained. 
The same power was necessary to secure the ships 
to provide transportation and to supply the 
loss occasioned by submarine warfare. Under an 
act approved September 7, 19 16, the United 
States Shipping Board was created. This board 



192 FEDERAL POWER: ITS GROWTH 

iias formed the Emergency Fleet Corporation and 
has gone into ship-building business as a govern- 
ment proposition, with a capital of $50,000,000 
provided out of the Federal Treasury. The gov- 
ernment can, if it so elects, absolutely control the 
ship-building of the entire nation and take over, 
at a price to be subsequently fixed, all ships com- 
pleted or in course of construction. 

The army cannot be transported from the in- 
terior camps to the seaports nor can the ships 
receive their cargoes of men, food and munitions 
unless the railroads move the trains with the least 
possible delay. Failure of the railroads to fully 
measure up to this enormous task compelled Fed- 
eral intervention and unification of all the railroad 
systems under government control is now a faqt. 
In the past we proceeded upon the theory that 
competition was wise and beneficial and all pool- 
ing arrangements were prohibited by law. This 
theory is now abandoned and Federal power is 
employed, through the absorption of the railroad 
systems into the governmental machine, to prevent 
traffic congestion and delay. The unification of 
the railroads is the greatest undertaking ever in- 
trusted to Federal authority; and if it can be sat- 
isfactorily conducted, the people will accept that 



AND NECESSITY 19S 

result as a final and convincing warrant for un- 
limited exercise of the Federal power. 

The railroads having been brought under Fed- 
eral control, it was but a short step to act in sim- 
ilar fashion regarding telegraph and telephone 
communication. A threatened strike by organized 
labor because at least one of the telegraph com- 
panies declined to allow their employees to become 
unionized, brought the matter to a crisis, although 
in the joint resolution for which the President 
sought hasty action, national security and defense 
were emphasized. An obedient House o^ Rep- 
resentatives placed all telegraph, telephone, ma- 
rine cable and radio systems under Federal con- 
trol after a debate of two hours, and while the 
Senate undertook for a brief period to exercise 
an independent spirit, the will of the President 
finally prevailed. The vote was not unanimous, 
for a minority of sixteen, contending that no ade- 
quate reason for the legislation had been pre- 
sented and the constitutional freedom of the press 
from governmental supervision was in danger, 
recorded themselves in the negative. Even 
though the period of control is limited by the 
i>oint resolution to the duration of the war, the 



194 FEDERAL POWER: ITS GROWTH 

experiment, if it proves successful, may be in- 
definitely prolonged. 

Under the exigency of the war we have a Fed- 
eral insurance system which has $50,000,000 at 
its command to insure ships and has been provided 
with $176,000,000 with which to insure the lives 
of soldiers and sailors. Thus we find the gov- 
ernment entering another field of private industry, 
although nobody questions the wisdom of this 
paternal regard. In fact, the people are accept- 
ing all the manifestations of governmental au- 
thority with an acquiescence that amounts to indif- 
ference and face other far-reaching conditions 
without surprise. 

And what of the Constitution while these new 
laws were being enacted? It has not been seri- 
ously considered. Men in Congress have not 
hesitated to openly assert in debate that the Con- 
stitution is to be consulted only in time of peace. 
The doctrine of constitutionality has been for- 
gotten and the doctrine of paramount necessity 
obtains with more force than ever before. When 
a normal period returns, we may recur to the once- 
revered document. In the meantime, we see lit- 
tle that has not been swept into the all-embracing 
arm of the government by war legislation. Sin- 



AND NECESSITY 195 

gularly enough, only one feature of our Individual 
and national life has been omitted. We have 
done little to make education a national in- 
stitution. We have dealt with every phase of 
the material world but we have left the American 
mind to take care of itself. No one would advo- 
cate the adoption of the Prussian system of arbi- 
trarily feeding citizens upon government-made 
doctrines. We ought, however, to see that those 
who are to grow Into citlzenhood, as well as those 
who are already citizens, are inculcated through 
knowledge with the spirit of democracy, t^e love 
of liberty, a respect for law and morals, and an 
understanding of International justice and Ideals. 
We need not centralize the system of education 
and we can guard against any attempt of a party 
to perpetuate itself in power through the wide- 
spread teaching of Its especial doctrines. When 
the war has taught us, as it will, that no army 
can have a higher patriotism than the people back 
of the army, and the man in the trench can rise no 
higher in the realm of fortitude and sacrifice than 
the height reached by the nation at home, we shall 
realize the necessity of applying Federal authority 
to the Immaterial as well as the material. We 
already have Federal control of our bodies, our 



196 FEDERAL POWER: ITS GROWTH 

going and our coming, our food and our homes. 
Assistance in the development of our minds must 
come as the direct result of the war, because one 
of the most serious disclosures of the war period 
has been Ignorance concerning our national tradi- 
tions and aspirations. If the States do not realize 
the Importance of emphasizing this phase of 
knowledge, the national government will be com- 
pelled to undertake the work. Federal education 
is no more to be feared than Federal regulation. 
It is certainly as essential to our national safety. 



AND NECESSITY 197 



Chapter XIII 

FEDERALISM AND THE FUTURE 

THERE is but one conclusion from the factSy 
which, as concisely as possible, have thus far 
been presented. Whether we approve or not, it 
must be accepted as inevitable that the develop- 
ment of the Federal power, persistent fnpm the 
very beginning of our national history, will not 
only continue unchecked but will more and more be 
made manifest. The river is sweeping onward to 
the sea. It might have been possible long ago, 
when the nation was in its swaddling clothes, to 
have changed the whole character of its future ex- 
istence, if the people had so determined. It is now 
too late, for the nation has passed out of its for- 
mative period into the full stature of manhoods 
The truth is, however, that the American people, 
as a whole, have never believed that the individu- 
ality of the States must be recognized as an essen- 
tial factor in our national growth. This is demon- 
strated by the fact that in every contest between 



198 FEDERAL POWER: ITS GROWTH 

the so-called rights of the States and the exercise 
of Federal power, the latter principle has pre- 
vailed. To-day there is no longer any conflict. 
The tide is running all one way. It is impossible 
to overcome its tremendous force. The nation is 
being swept forward upon a tide of Federalism 
and the anxious fears occasionally uttered by a 
steadily decreasing minority are deafened by the 
roar of the torrent. 

The people, as a mass, have no doubts. They 
view the future with the sublime optimism which 
is characteristic of the American temperament. 
They increase, rather than decrease, the duties and 
responsibilities of the Federal government because 
their faith in that government is supreme and be- 
cause they realize that no national evil can be rem- 
edied and no national results achieved except by 
the force of centralized authority. There is no 
gainsaying the lesson which the nation has learned. 
Even before the present war the lottery evil was 
abolished, the devastating yellow fever conquered, 
the purity of our food guaranteed, powerful cor- 
porations regulated and the great railroads of the 
country compelled to treat every shipper, large and 
small, with absolute equality. All the laws which 
invest the Federal government with larger powers 



AND NECESSITY 199 

have accomplished the anticipated and desired re- 
sults, and it may be set down as an axiom that the 
representatives of the people will not in the future 
hesitate at the acceptance of any proposition which, 
having in view the public welfare, is offered for 
their consideration. They have learned the short 
and direct way toward progress ; and the momen- 
tum of years of accumulated experience is not to 
be overcome. 

The status quo existing before the war began 
will never be entirely restored. This is all the 
more true because the advanced position which we 
have taken under the pressure of a crisis is not 
radical but evolutionary. We are, therefore, con- 
fronted with the fact that when the era of peace 
finally arrives we must face the necessity of a new 
adjustment of Federal and State governments — 
an adjustment made all the more difficult because 
of the new relations occasioned by the war. The 
situation is further complicated by the failure of 
the Constitution to provide a solution of the prob- 
lem. The high regard which we feel for our great 
charter cannot blind our eyes to the knowledge 
that it fails to distinctly affirm the duties and re- 
sponsibilities of the States. The last three sec- 
tions of Article I detail plainly the things which a 



wo FEDERAL POWER: ITS GROWTH 

State is forbidden to do; but the things which a 
State can do are hidden in provisions altogether 
too general in their character. We find the pow- 
ers of Congress, on the other hand, specifically set 
forth; and it is but natural to regret that the 
framers of the Constitution did not have the pres- 
cience to anticipate the wisdom which marks the 
Act of the British Parliament of 1867 which cre- 
ated the present union of Canada and wherein the 
lines of demarcation between the Dominion, on 
the one hand, and the provinces, on the other, are 
plainly drawn. One of the sections of that act is 
devoted to the distribution of legislative powers, 
twenty-nine subjects being assigned to the Parlia- 
ment, which is the Federal body, and sixteen other 
subjects being classified under the heading, "Ex- 
clusive powers of the provincial legislatures. '' 
The consequence is that in Canada there is com- 
paratively little dispute as to Dominion or provin- 
cial jurisdiction because the channel of its govern- 
ment, unlike ours, has been plainly charted. 

Beneficent as the exercise of Federal power has 
been, and with the certainty that it will be in- 
creased rather than diminished, we must, neverthe- 
I less, admit that unless we deal with it along new 
! lines it is fraught with evil. Present conditions 



AND NECESSITY 201 

point toward an oligarchy, wherein a few men will 
have supreme power, and the transition from an 
oligarchy to an autocracy is all too brief. The 
problem is to preserve our democracy even under 
a centralized, Federalistic government. The first 
step toward this result is to curtail executive 
power. The President should be deprived of the 
right to veto legislation, or if that right be still 
continued, the enactment of a law despite his veto 
should be made possible by a majority vote of the 
two Houses of Congress. It is true that this would 
necessitate an amendment to the Constitution^, but 
this is not an insurmountable obstacle. On the 
contrary, the time has come when constitutional 
changes should be boldly and persistently advo- 
cated. We are too apt to regard the Constitution 
as a document beyond criticism or revision. It is 
revered like the ark of the Covenant, not to be 
profaned by impious touch. President Lowell, of 
Harvard University, explains the origin of this 
reverence. "The generation that framed the Con- 
stitution," he says, "looked upon that document as 
very imperfect, but they clung to it tenaciously as 
the only defense against national dismemberment, 
and in order to make it popular, they praised it 
beyond their own belief in its merits. This effort 



202 FEDERAL POWER: ITS GROWTH 

to force themselves to admire the Constitution was 
marvelously successful, and resulted, In the next 
generation, in a worship of the Constitution of 
which its framers never dreamed." 

It must be remembered, also, that the men who 
dominated the making of the Constitution were by 
no means convinced that the common people could 
be trusted. Suffrage, in the early days of the re- 
public, even when exercised in the election of rep- 
resentatives of the people, was not universal, being 
restricted by property and other qualifications. 
Any action taken by the popular branch of Con- 
gress' was subject to review by a Senate whose 
members were deliberately and carefully chosen 
by State legislatures ; the Senate being the saucer, 
according to a remark attributed to George Wash- 
ington, Into which the hot tea of the House could 
be poured to cool. Should both the Senate and the 
House be too responsive to popular demand, there 
was still a refuge for property and other conserva- 
tive interests in the veto power of the President 
and In the knowledge that It would require a two- 
thirds vote In both Houses to overcome his objec- 
tion. The men who to-day still entertain a lurking 
fear of the people will undoubtedly uphold this 
veto power as one of the most Important and nee- 



AND NECESSITY SOS 

essary safeguards of the Constitution, just as they 
opposed the popular election of Senators. None 
the less, the United States stands alone to-day 
among the great constitutional governments in con- 
ferring upon its ruler the right to thwart the ex- 
pressed will of the national legislature. In France 
the President has no veto power. In Great Britain,, 
the action of Parliament is final ; and in Italy, the 
sanction of the King '4s necessary to the validity 
of laws proposed by the Parliament, but in point 
of fact he never refuses it." We have already 
shown the menace to our free institutions through 
the dispensation of patronage by the President. 
The privilege of wholesale appointment and the 
right to veto legislation must be taken away from 
him before we can view with entire equanimity our 
further certain progress along the path of Fed- 
eral power. 

Something is radically wrong with our system 
of government when the representatives of the 
people, charged by their oaths to perform the leg- 
islative duties for which they were duly elected, 
are deterred from the consideration of measures 
by the knowledge that even should such measures 
be enacted, they would be vetoed by a hostile 
President. When Congress is evenly divided oa 



t 



g04 FEDERAL POWER: ITS GROWTH 

party lines, and when support of a President is 
made a solemn party obligation, the national legis- 
lature is powerless to act. Occasionally, when ad- 
ministration or political policies are not involved, 
a veto is without effect; but the fact remains that 
there is absolutely no reason why the judgment 
of a single man, even though he be the occupant 
of the White House, should neutralize the will of 
the majority of the representatives of the people 
in Congress. 

Other steps, even more progressive, must be 
taken. The trouble is that while we have in prac- 
tice, if not in theory, changed our whole system of 
government, we have not formally recognized the 
fact that the change has taken place. We have 
drifted along, in characteristic American fashion, 
without having the courage to confess that the old 
idea of State sovereignty has been wiped out of 
existence by the necessities of modem times. With 
marked persistency we are building up a central- 
ized Federal government, reducing the States to 
mere nonentities, but we are making no provision 
for working out our salvation under the new 
regime. We must be blind not to see that the era 
of Federal power is permanently established and 
yet no one has had the courage to provide for the 



AND NECESSITY 205 

inevitable future by devising a system of govern- 
ment designed to meet new conditions. We are 
allowing the foundations of our national edifice 
to crumble away without planning a safe and dura- 
ble substitute. If the States in our union are to 
drop to the plane of counties in England, or de- 
partments in France, or provinces in Canada — and 
already they are in this category — and we are still 
to preserve the democratization which has been 
our strength and our glory in the past, we must 
see to it that neither an oligarchy nor an autocracy 
takes the place of a republic. There is only one 
way in which we can avoid the peril that thveatens. 
The government must not be centered in a presi- 
dent, to which point we have arrived, but must be 
directly administered by the people. In other 
words, the solution of our national problem lies 
in the adoption of a system of parliamentary con- 
trol, similar to that which gives to Great Britain, 
France and Canada a centralized or national gov- 
ernment without the evils which even now are part 
of our experience. 

We have a traditional love for the States. 
They existed as independent political organiza- 
tions before the republic was formed. They are 
now a part of our great union; and, with a love 



206 FEDERAL POWER: ITS GROWTH 

that Is more sentimental than wise, we hesitate to 
relegate them to the position of mere provinces. 
Nevertheless, we must realize that the States, even 
If they are not all laggards In the march of prog- 
ress, are prevented from unanimity of action by 
reason of their diversity of location and multiplic- 
ity of numbers; and disjointed action Is worse 
than futile. The greater must swallow up the less ; 
and the Federal aegis Is over all. In readjusting 
ourselves to this new condition we need not do 
violence to the eternal principles which inspired 
our Constitution. We can — and. Indeed, we must 
— eliminate certain details which are neither sa- 
cred nor lasting, and Introduce those essentials 
which will Insure the national development and 
permanency which other democracies enjoy. We 
could aidvantageously borrow from France the 
provision which gives the President a term of 
h seven years, with Ineligibility for reelection. The 
parliamentary government of Great Britain Is re- 
sponsive and responsible; but, especially, we find 
In Canada a model of federal union which Is 
worthy of serious consideration. 

Students of the Canadian system Insist that It 
contains elements of undoubted strength not en- 
joyed by the people of the United States. This Is 



AND NECESSITY 20T 

unquestionably true. The head of the Dominion 
Government is the Governor-General, appointed 
by the crown, but his principal duty consists in safe- 
guarding the integrity of the empire. He governs 
entirely through a ministry which comes from and 
is responsible to the people. A weak cabinet in 
Canada could not long continue in power. The 
instinct of political self-preservation compels the 
selection of strong, capable men, skilled In the 
knowledge of the great departments which they 
are called upon to administer. Otherwise they 
cannot survive. In the United States, a presiden- 
tial cabinet can be chosen for personal reasons 
from among the butchers and bakers and candle- 
stick-makers, and if an obedient Senate confirms 
the nominations, the people have no recourse. 
The members of a presidential cabinet are not re- 
sponsible to the people, they cannot be interro- 
gated upon the floor of Congress, and can remain 
in office as long as they are persona grata to the 
President; and the weakness and inefficiency of 
some presidential cabinets has been little short of 
a national scandal. In Canada, as in England, a 
ministry stands or falls upon the adoption or de- 
feat of measures which it proposes ; and should de- 
feat come, there is provision for a prompt appeal 



^ 



^08 FEDERAL POWER: ITS GROWTH 

to the people upon the question at issue. We lack 
this elasticity in the United States. Here we elect 
a Senator for six years, a Representative for two 
years and a President for four years, during which 
terms nothing done by either, short of an impeach- 
able offense, can affect his official status; and the 
fact that a President is to remain in office long 
enough to influence by praise or criticism the politi- 
cal fortunes of candidates in his own party seek- 
ing reelection compels subordination to his will. 
' This fact menaces free government. The remedy 
lies in recasting our system so that the President 
shall be surrounded by men whose period of power 
must end when, in the judgment of the representa- 
tives of the people, their unfitness is demonstrated 
by their acts. 

The American people are, as a whole, so loth to 
interfere with established custom that even the 
mere suggestion of a departure from the beaten 
path is certain to antagonize those timid souls who 
are not yet willing to recognize that times have 
changed and that we must change with them. 
Nevertheless, with the fact staring us in the face 
that unchecked progress along the path of Fed- 
eral power is as certain for the future as it has 
been in the past, we must provide some method 



AND NECESSITY 209 

which will insure the perpetuity of the republic 
under new conditions. We can obliterate State S 
lines and still remain a democracy; but our prin- / 
ciples and ideals, which are of more concern than ] 
State governments, are doomed if the strong cen- / 
tralized authority which we have created is al- ' 
lowed to operate without recognized principles 
and without restraint. Already, in our typically 
American desire to achieve immediate and de- 
cisive results, we have endowed individuals with 
unlimited power — a fact which gives aid and com- 
fort to those who assert that only in this%Yr ay can 
democracy escape failure. The great body of our 
citizenship are not, however, of little faith. They 
are sincerely imbued with the hope and belief that 
we can be a nation without becoming an autocracy; 
that Federal power can continue to be exercised 
without danger; and that our democracy can be 
preserved without minimizing efficiency or de- 
stroying the great structure of liberty which has 
been erected. 

In presenting a plan whereby this aspiration 
can be realized, we do not have to resort to radi- 
cal procedure. It is not necessary to hastily adopt 
the English form. We can approach an ideal sys- 
tem through gradual stages, without disrupting 



/ 



^10 FEDERAL POWER: ITS GROWTH 

our Constitution, but, on the other hand, more 
strongly emphasizing the principles of popular 
government. We need not, for instance, entirely 
deprive the President of the appointing power. 
Judges and higher officials may still be selected by 
him, subject to confirmation by the Senate; but the 
great bulk of the office-holders, who deal, as it 
were, with the purely business side of governmen- 
tal affairs, should be chosen through non-political, 
competitive methods and retained as long as they 
faithfully and effiicently perform their duties. It 
IS true that this would play havoc with the poli- 
ticians who believe that to the victors belong the 
spoils, but the large majority of the people who 
are more concerned with good administration than 
with the distribution of patronage, would view 
this new era with profound satisfaction. 

The members of the cabinet who are, and al- 
ways have been, personal appendages of the Presi- 
dent, should still be appointed by him, but they 
should be directly responsible for their acts and 
policies to the representatives of the people in the 
Senate and House. They should have seats upon 
the floors of both Houses for the purpose of an- 
swering inquiries; and with each one conscious of 
his strict accountability to Gongress, the govern- 



AND NECESSITY 211 

ment would be brought closer to the people. In 
the adoption of this plan it would be necessary to 
merge into the several departments the numerous 
bureaus, commissions and boards which now en- 
joy an irresponsible and unrestrained existence; 
but such coordination would tend to efficiency and 
direct responsibility. Much of the evil of an in- 
dependent and constantly Increasing bureaucratic 
system would be removed. 

If it be asserted that by making cabinet officers 
responsible to the representatives of the people In- 
stead of to the President, the latter will be in some 
degree shorn of power, the answer must be frankly 
made that such deprivation is by no means unde- 
sirable. There is no necessity, even If it were pos- 
sible, to reduce the presidency of the United States 
to the perfunctory position which, . for example, 
obtains with the head of the French republic ; nor 
is It feasible at this time to establish a premier- 
ship such as forms the pivot of the English gov- 
ernment. We can, however, avoid the abuse and 
misuse of Federal power by government officials, 
which Is not a distant menace. If the men ap- 
pointed by the President to administer the great 
departments of the government are made directly 
and instantly responsible to the representatives of 



212 FEDERAL POWER: ITS GROWTH 

the people. In its actual operation the plan would 
differ from the English system in that Congress 
could deal with the cabinet individually as well aa 
collectively; the former, if the member be mani- 
festly inadequate, incompetent, or otherwise unfit- 
ted for his high position; and the latter, if a re- 
pudiated measure be presented as the policy of the 
entire administration. Certain it is that if in the 
past some plan such as is here suggested had been 
in force, the history of sundry legislative and of- 
ficial actions would have been less open to criti- 
cism than has been the case. 

Universal acceptance cannot be anticipated for 
any method or methods which are offered as a 
solution of the problems which accompany the 
almost unrestricted exercise of Federal Power. 
The subject is too vast and complicated to be 
clarified by a single idea. Much will be accom- 
plished, however, if thoughtful attention of the 
American people can be directed to present 
conditions and to the necessity of studying 
their effect upon our national future. We know 
that it would be fatal to attempt to operate a mod- 
ern, broad-gauge railroad train upon the ancient 
rails over which Stephenson carefully maneuvered 
his first steam engine. The analogy applies to the 



AND NECESSITY 21^ 

United States. We must meet new conditions, 
wherein the States, as integral parts of a dual 
plan, have almost completely vanished, and their 
places taken by a powerful, compact machine 
known as the National Government. The State 
will, in the future, bear the same relation to the 
union that the county does to the State. It will be 
a convenient geographical division with limited 
and circumscribed powers. Even its last vestige 
of erstwhile glory — the right to cast its electoral 
vote for President and Vice-President — ^will soon 
be taken. The people and not the States must 
decide who shall be the chief executive of the na- 
tion. This will require another amendment to the 
Constitution, but this change, like others, is only 
a matter of time. 

Federal power, briefly stated. Is the power of 
the people. It is granted in the last four words 
of the tenth article of the Constitution — four preg- 
nant and significant words which have been over- 
looked. If not entirely ignored. "The powers not 
delegated to the United States by this Constitu- 
tion," says the article, "nor prohibited by it to the 
States, are reserved to the States respectively or 
to the people J' Experience has demonstrated that 
the States cannot think or act nationally. Forty- 



£14 FEDERAL POWER: ITS GROWTH 

eight legislatures cannot act in unison; and the 
evils of our modern civilization or the crises which 
come with succeeding generations cannot be suc- 
cessfully combated or overcome with the weak- 
ness and lack of cohesion which are inseparable 
from separate political organizations. With the 
passing of the States, the people are coming into 
their own, but in order to meet their new and 
tremendous responsibilities they must be provided 
with a system of government different in its details 
from that under which we have been existing, half- 
State and half-Nation. The people have acted 
under the plain grant of the Constitution in invest- 
ing the Federal government with unexampled 
power and they have thus acted because it was 
evident that in no other way could the develop- 
ment of the nation be assured; but due regard for 
the safety and permanence of their government 
demands that they shall directly exercise this 
power. They should abolish the absurdity of un- 
dergoing a three months' spasm in a presidential 
campaign and then subsiding into a state of utter 
helplessness for the succeeding four years. They 
should revise the Constitution so as to extend the 
presidential term to six years, with ineligibility for 
reelection ; should reduce to a minimum the presi- 



ANii NECESSITY 215 

dential dispensation of patronage; and provide for 
a cabinet which would be personally and imme- 
diately responsible to them for every official act 
and recommendation. Congress, representing the 
people, would then be free to act without fear 
or favor; and the pivot upon which the nation 
turns would no longer be the White House but 
the Capitol. The framers of the Constitution 
gave first and most extended consideration to the 
legislative branch of our government; and if this 
place of honor has not been held, it is because the 
evolution of Federal power has abnormally de- 
veloped the position of the executive. jThe fact 
that the President has loomed larger and larger 
In our political history has dwarfed Congress and 
is the basis for the prevalent criticism that, as a 
body, it has retrograded in initiative, independent 
judgment and personnel. 

There is no fear of Federal power in Great 
Britain, France or Canada, even though they have 
centralized governments. There need be no 
menace of Federal power in this country if, as In 
other great democracies, the people keep the con- 
trol of that power in their own hands through a 
cabinet responsible to their representatives In Con- 
gress and through the restriction of executive au- 



gl6 FEDERAL POWER: ITS GROWTH 

thority. We can no longer stand upon the shifting 
sands of opportunism, trusting in haphazard 
fashion that the obsolete forms of the past will in 
some inscrutable way be adjusted to the inevitable 
exigencies of the future. We must face our duty 
with faith and wisdom, and, above all, with cour- 
age. We must honestly recognize the fact that the 
States have been eliminated as national factors 
and that we have established a Federal govern- 
ment with supreme functions; but there is still 
before us the task of making that government so 
elastic, so completely under the control of the 
people and so free from the perils of autocracy 
that Federal power, instead of being a menace 
to our liberties, will be the cornerstone upon which 
our nation will permanently endure. 



t 



